In India, the Code of Civil Procedure, 1908, governs the law on recognition and enforceability of foreign judgments, including foreign divorce judgments:
Section 13. When foreign judgment 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—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
Section 13 is held by the Supreme Court of India to be substantive law and not merely a procedural formality. Raj Rajendra Sardar Moloji Nar Singh Rao Shitole v. Shankar Saran, AIR 1962 SC 1737 (India). If the foreign divorce judgment suffers from any of the defects mentioned in section 13(a) through (f), it would not be recognized in India, and under Indian law, the marriage would survive.
It is necessary to note that the conclusiveness of a foreign judgment cannot be questioned on grounds other than the exceptions mentioned in section 13. Alcon Elecs. Private Ltd. v. Celem S.A. of Fos 34320 Roujan, France, 2017 (2) SCC 253 (India). The Supreme Court has categorically held that the courts in India will not inquire whether the foreign judgment is supported by evidence or otherwise correct because the binding character of the judgment may be displaced only by establishing that the case falls within the above-referenced exceptions. R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 (India). Further, it is upon the party contesting the recognition of the foreign judgment to demonstrate that it falls within one or more of these exceptions.
Section 13(a) states that foreign judgments are not recognized if they have not been pronounced by a court of competent jurisdiction. Section 14 creates a rebuttable presumption of competence (e.g., personal and subject matter jurisdiction) that the courts will rely on in recognizing the foreign judgment. Alcon Elecs. Private Ltd. v. Celem S.A. of Fos 34320 Roujan, France, 2017 (2) SCC 253 (India).
Section 14. Presumption 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.
Interpreting section 13 in a general context, the Supreme Court has held that the competence contemplated in it is in an international sense, and not merely by the law of the foreign state delivering the judgment. R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 (India). The Supreme Court further observed that certain rules of private international law are recognized as common to civilized jurisdictions and these common rules have been adopted to adjudicate disputes involving international elements to effectuate judgments of foreign courts. The Supreme Court also observes that a proceeding in relation to personal status is treated as a proceeding in rem and that a judgment in rem rendered by a court where the parties are domiciled is, by comity of nations, admitted to recognition by other courts.
A decree of divorce, being a judgment in regard to personal status, is a judgment in rem, and, hence, a foreign court could acquire territorial jurisdiction by virtue of the domicile of the parties. Section 41 of the Indian Evidence Act 1872 makes a final judgment of a competent court in exercise of matrimonial jurisdiction conclusive proof in regard to the legal character it confers or takes away, and, relying on that provision, the Supreme Court has held—in Smt. Satya v. Shri Teja Singh, 1975 (1) SCC 120, and in Sankaran Govindan v. Lakshmi Bharathi, 1975 (3) SCC 351—such a judgment to be a judgment in rem. “Domicile,” in the words of Justice Frankfurter, implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. Williams v. North Carolina, 325 U.S. 226 (1945). The Supreme Court of India has held that the concept of domicile is not uniform throughout the world and, because residence does establish domicile, the court must apply a qualitative, as well as a quantitative, test to determine domicile. Smt. Satya v. Shri Teja Singh, 1975 (1) SCC 120 (India). The archaic view of domicile held that a wife’s domicile followed her husband.
In India, there is no law that deals with the issue of domicile for the purposes of recognition of foreign divorce decrees. The issue is not devoid of confusion as is very aptly observed by the Supreme Court of India: “Domicile is a mixed question of law and fact and there is perhaps no chapter in the law that has from such extensive discussion received less satisfactory settlement.” Sankaran Govindan v. Lakshmi Bharathi, 1975 (3) SCC 351 (India).
The Supreme Court of India has observed that a wife’s choice of a domicile may be fettered by a husband’s domicile, except where a husband’s domicile is a feigned domicile. Smt. Satya v. Shri Teja Singh, 1975 (1) SCC 120 (India). In the same judgment, applying the qualitative test, the Court rejected a husband’s argument that the Nevada family court had jurisdiction to grant him divorce on the ground of his having acquired domicile in Nevada by living there for more than six weeks preceding the commencement of the divorce proceedings. The Court held that the husband went to Nevada forum-hunting, found a convenient jurisdiction that would easily grant a divorce to him, and left it even before the ink on his domiciliary assertion was dry. Ultimately, the Supreme Court invoked section 13(e) and held that the husband had fraudulently invoked the jurisdiction of the Nevada family court and, hence, the divorce decree could not be recognized in India.
However, in a subsequent leading matrimonial case involving recognition of a foreign divorce judgment, the Supreme Court appears to veer away from the vague concept of domicile and clearly defined the bounds of territorial jurisdiction by holding that section 13(a) should be interpreted to mean that only a court that the law under which the parties are married recognizes as a court of competent jurisdiction to entertain the matrimonial dispute can issue a divorce decree, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of a foreign court. It was clarified that this interpretation of section 13(a) would free women from the rule that a wife’s domicile follows that of her husband and that it is the husband’s domiciliary law that determines the jurisdiction. Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr., 1991 (3) SCC 451 (India).
By virtue of the aforesaid judgment, in order for a foreign divorce decree to be compliant with section 13(a), whether the court issuing the decree has jurisdiction over the parties and subject matter must be construed in light of the relevant Indian law under which the parties had formalized their marriage, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of the foreign court.
India has several laws regarding marriage and divorce: the Hindu Marriage Act, 1955; the Parsi Marriage and Divorce Act, 1936; the Indian Divorce Act, 1869; the Special Marriage Act, 1954; and the like. Therefore, the meaning of the words “Court of competent jurisdiction” under section 13(a) would vary based on the Indian law governing the marriage and divorce of the parties. For example, section 31 of the Special Marriage Act, 1954, confers jurisdiction on a court within the jurisdiction where the marriage was formalized, or where the respondent resides at the time of presentation of the petition, or where the parties last resided together, or where the petitioner is residing at the presentation of the petition if the respondent is residing outside of India or has not been heard from for a period of seven years. By a recent amendment to that statute, in cases in which the wife is the petitioner, then the district court where she is residing at the presentation the petition would also have jurisdiction. Therefore, in the case of a foreign decree of divorce of parties to a marriage formalized under the Special Marriage Act, 1954, recognition would depend on whether the decree was issued by a court that had jurisdiction in accordance with any one or more of the clauses to section 31 of the act.
Section 13(b) states that a foreign judgment would not be recognized in India if it has not been given on the merits of the case. The Supreme Court has applied this exception differently to foreign divorce decrees than to other foreign judgments. With regard to commercial judgments, the Supreme Court has held that where the defendant chooses not to appear and the foreign court renders a decision on the merits, such decision would be recognized in India. Int’l Woollen Mills v. Standard Wool (UK) Ltd., 2001 (5) SCC 265, followed in Alcon Elecs. Private Ltd. v. Celem S.A. of Fos 34320 Roujan, France, 2017 (2) SCC 253 (India). Nonetheless, this principle is not accepted by the Supreme Court in relation to matrimonial cases.
In many cases of divorce filed in a foreign court, it happens that the opposing party, perhaps having already relocated to India or elsewhere, is not served with the notice of the proceedings at the place of his or her current residence or, having been served such notice, does not submit to the jurisdiction of the foreign court either by not appearing at all or by filing a reply under protest. Foreign divorce decrees passed in all such cases are not considered to be decrees on merits of the case and are not recognized in India. Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr., 1991 (3) SCC 451 (India). Further, this clause has been interpreted by the Supreme Court to also mean that the decision of the foreign court must be on a ground available under the law under which the parties are married. Id. In other words, if the foreign court grants a decree of divorce on a ground other than those that are available under the law under which the parties were married, such a decision would not be considered a decision on the merits and would not be recognized in India. Each of the laws governing divorce in India have specific grounds on which divorce can be granted, and no other ground would be available to the parties.
Section 13(c) states that where the foreign judgment appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India, the foreign judgment would not be recognized in India. Section 13(f) also provides that a foreign judgment that sustains a claim founded on a breach of Indian law would not be recognized. A divorce granted by a foreign court on a ground other than those available under the law under which the parties were married would fall foul of section 13(b), (c), and (f). Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr., 1991 (3) SCC 451 (India).
Section 13(d) provides that a foreign judgment would not be recognized where the proceedings in which the judgment was obtained are opposed to natural justice. The Supreme Court has held that the words “natural justice” are not restricted as they may be in foreign jurisdictions and not only encompass due notice and hearing but also contemplate that the foreign court must comprise impartial persons, acting fairly, without bias and in good faith. R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 (India). The Supreme Court has also observed that a judge sitting in appeal over his or her own judgment could also amount to denial of an unbiased court. Noncompliance with any of these could vitiate the foreign judgment insofar as its recognition in India is concerned. However, the Supreme Court also held that there would be a presumption that the foreign court followed just and proper procedure, acted honestly, and was not biased, and that no inference of bias, dishonesty, or unfairness would normally be made from the conclusion recorded by the foreign court on the merits and it is for the party setting up a case that the foreign judgment suffered from a denial of principles of natural justice to discharge this burden.
In another case pertaining to the interpretation section 13(d), the Supreme Court substantially expanded the scope of “natural justice” by holding that mere service of process on the respondent is not sufficient and that it is also necessary to ascertain whether the respondent was in a position to obtain representation or to contest the action and whether the foreign court ensured effective contest (e.g., having the petitioner provide costs and expenses for travel or an award of attorney fees where necessary). In fact, the Supreme Court went to the extent of holding that, as a matter of rule, Indian courts must insist that the provisions of clause (d) would be satisfied and the foreign matrimonial judgment would be recognized only if it is of the forum where the respondent is domiciled or habitually or permanently resides. Y. Narasimha Rao & Ors. v. Y. Venkata Lakshmi & Anr., 1991 (3) SCC 451 (India).
Section 13(e) provides that a foreign judgment obtained by fraud would not be recognized. It is well recognized that fraud, whether in regard to jurisdictional facts or as to merits (id.), vitiates any judgment whether in rem or in personam. Smt. Satya v. Shri Teja Singh, 1975 (1) SCC 120 (India). However, there is an essential distinction between mistake and trickery, and it would impermissible to show that the court was merely mistaken while passing the judgment. Sankaran Govindan v. Lakshmi Bharathi, 1975 (3) SCC 351 (India). It is also impermissible for the court examining the foreign judgment to conduct a retrial of an issue already determined by the foreign court on the ground of fraud alleged merely on the basis of false testimony or evidence before the foreign court. To successfully challenge a foreign judgment on the ground of fraud on the merits, the fraud must be extrinsic or collateral and there must be new and material facts that were not before the foreign court and that show a fraud perpetrated in obtaining the foreign judgment. Id.
In many cases of foreign divorce judgments, it is found that compliance with natural justice is wanting or the divorce is granted on a ground not available under Indian law or it is granted by a foreign court that may, under foreign laws, be a competent court but would not be recognized as such in India. In such cases, the marriage between the parties remains in full force and effect in India even though they are divorced in the foreign jurisdiction.