Many Indians who live abroad obtain a divorce there and assume it ends the marriage everywhere. For a marriage solemnised in India, that is not always so. An Indian court decides whether a foreign decree can be recognised.
The legal tests
Section 13 of the Code of Civil Procedure says a foreign judgment is conclusive between the parties unless one of the listed exceptions applies. In Y. Narasimha Rao v. Y. Venkata Lakshmi (1991), the Supreme Court applied these tests to foreign matrimonial decrees. In broad terms, a foreign divorce is likely to be recognised only if:
- it was passed by a court of competent jurisdiction, as recognised by the law under which the parties married;
- it was given on the merits, on a ground available under that law;
- the respondent was properly heard, with real notice and a fair chance to defend;
- it was not obtained by fraud; and
- it does not offend Indian law or public policy.
A decree passed by consent or where the other spouse truly submitted to the foreign court is treated differently from an ex parte decree.
Executing a foreign decree in India
A foreign decree may need to be executed or given effect in India, for example to recover money, enforce maintenance or settle property. For some countries notified as reciprocating territories, certain decrees can be executed directly under Section 44A of the Code of Civil Procedure, for example for sums of money. For other countries, a suit may have to be filed on the decree. The court examines the decree first, so planning with an advocate saves time.
Why this matters
- Remarriage: remarrying in India on the strength of an unrecognised decree can raise serious questions, including a criminal complaint of bigamy.
- Property and inheritance: rights in India can depend on the marriage status.
- Maintenance: an Indian case may continue even after a foreign decree.
What we advise
- Before agreeing to a foreign divorce, speak to an Indian advocate.
- Keep proof of notice, service and the grounds used abroad.
- If you already have a decree, have it reviewed before you rely on it.
- Plan any Indian filing alongside the foreign case, not after it.
Our page on NRI divorce explains how we handle these cases.
Please note: This article gives general information and is not legal advice. Every case depends on its own facts, so please consult an advocate before acting.