Now a days, Indian courts are confronted with the situations wherein Hindu couples married in Indian, as per Hindu Law, settle in foreign land, develop matrimonial disputes and approach a foreign court .This situation demanded the Indian court to determine whether the decree passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.
Case Study: One Sikh boy named Randeep got married with a girl named Harpreet on 7th December 2017 at Patiala according to Anand Karaj and after that Randeep went to U.S.A. as he was settled there and just came to India for the purpose of marriage. At the time of marriage he promised Harpreet to take her along with him to USA but he did not stick to his words. When he went abroad, there were occasions when relations between husband and wife turned sour due to various reasons one of them being Randeep ignoring his wife and not even attending her calls. During this period in 2018 Randeep met another girl named Simran Kaur in USA and decided to marry her as both of them fell in love with each other. So Randeep approached court in USA for divorce proceedings against Harpreet in 2019. Harpreet was duly served with summons from US Court. But it was tough for her to join the legal proceedings in USA. As a result an ex-parte divorce decree was passed against her by USA court granting divorce to Randeep.. After Divorce, Randeep married again to Simran in USA.. One day Randeep met with an accident and lost his life in that accident. He had certain land and property in Patiala in his name. After his death, when Harpreet alleged her right regarding the property, Simran also started claiming her rights. Therefore, Harpreet came to know about her divorce which was granted by USA court in form of ex-parte decree and she also got aware about Randeep's second marriage with Simran. Now there is quarrel between two widows regarding their right in the property. The quarrel between them is regarding the inheritance of the property of the deceased?
NOW THE QUESTION IS:-
If Marriage between Randeep and Harpreet was not dissolved by a decree of Divorce granted by US courts then it is Harpreet who would continue to be widow of Randeep and shall inherit his property as Simran shall not be a legally wedded wife, otherwise if her marriage stood dissolved she has no right to inherit the estate of Randeep but it shall be Simran who would be widow and inheriting the property of her husband.
To find the correct answer the most important aspect is if the Divorce decree was valid or not and the following questions need to be answered..
What is the binding effect of foreign decree in INDIA?
Often it seems legal to get divorced from the country where one is living especially if that country’s divorce procedures are easier and less time consuming as compared to India. The big question at this point is Whether such a divorce decree is valid or not? This article examines this question from the perspective of Indian laws.
The following conditions are typically relevant for the cases which are being dealt by this article.
Both husband and wife are Hindus/Sikh.
Both are born and brought up in India.
Marriage takes places in India as per Hindu marriage customs and traditions.
One of the spouse is settled abroad.
One of the two (husband or wife) files for divorce in foreign court.
The divorce is not by mutual consent.
Whether HINDU MARRIAGE ACT,1955 is applicable on these parties?
First we will discuss the concept of ‘Domicile’
Domicile determines the law that will be applicable to an individual. A person may be resident and citizen of a country while his domicile is of somewhere else. The general rule is that ‘Domicile is where the Heart is’
In general we can say that in the case being considered by us, the husband remained domiciled in India even though he has moved his residence to some foreign land. The domicile may be India even if the person after moving to foreign land acquires foreign citizenship. This is often true becausefirst generation migrants from India retains India in their heart.
The Hindu marriage Act, 1955 applies on the husband as he is a Hindu and this act will apply to Hindus outside the territory of India if such Hindus are domiciled in territory of India. Husband is domiciled in India by way of Domicile of Origin. (SondurGopal Vs. SondurRajini AIR 2013 SC 2678)
The basic rule is that the JURISDICTION assumed by the foreign courts as well as the GROUNDS on which the relief is granted by the foreign court must be in accordance with the matrimonial law under which the parties are married. So, the Ex-parte decree of divorce passed by USA court must comply with these two provisions mentioned in section 13 and section 19 of The Hindu Marriage Act 1955.
Section 13 in The Hindu Marriage Act, 1955.
[(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation .In this clause,
(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or
(v) has 18 [***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [***]
[Explanation. In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or]
[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]
Explanation. This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)
Section 19 in The Hindu Marriage Act, 1955
Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]
The decree to prove valid has to prove the test of Section 13 of The Code of Civil Procedure 1908.This section tells us about the foreign decrees and certain exceptions when the decree is not enforceable.
In this case the decree which has been passed by the foreign court is falling in the ambit of exception of section 13 of cpc, that foreign judgement is not conclusive, when it has not been pronounced by the court of competent jurisdiction. In this case as the matrimonial law has to be followed by the foreign court but the foreign court has violated the provisions of The Hindu Marriage Act 1955. According to section 19 of The Hindu Marriage Act 1955, the foreign court has no jurisdiction to entertain this case and ignoring this fact, an ex-parte decree has been passed. At last the decree has not passed the test of section 13 of CPC.
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 recognize 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].
TWO ESSENTIAL CONDITIONS
WHERE PROCEEDINGS NOT ATTENDED BY NON APPLICANT
WHERE PROCEEDINGS ATTENED BY NON APPLICANT
DIVORCE PROCEEDINGS NOT ATTENDED
It is not uncommon to hear about cases either the husband or the wife filed for divorce in foreign courts, while the spouse did not attend the proceedings either due to notice not being served or due to some other reason.
In such a situation, the case of Y. NarasimhaRao is relevant. Y. NarasimhaRao and Ors.Vs. Y. Venkata Lakshmi and Anr.on 9 July 1991. Equivalent citations: 1991 SCR (2) 821, 1991 SCC (3) 451 Supreme Court of India.
FACTS:- Y. NarsimhaRao and Y. Venkata Lakshmi were married in Tirupati, India as per Hindu customs in 1975. They separated in July 1978. Mr. Rao filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA. Mrs. Lakshmi sent her reply from India under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of Mrs. Lakshmi. Mr. Rao had earlier filed a petition for dissolution of marriage in the sub-Court of Tirupati. Later, he filed an application for dismissing the petition in view of the decree passed by the Missouri Court. On 2 November 1981, Mr. Rao married another woman. Hence, Mrs. Lakshmi filed a criminal complaint against Mr. Rao for the offence of bigamy. The Supreme Court refused to accept the divorce decree granted by the court at Missouri, USA. While deciding the case the Supreme Court laid down the law for foreign matrimonial judgments in this country.
The key rule laid by SC can be summed up as follows: If a couple is married under Hindu law.
The foreign court that grants divorce must be acceptable under Hindu Law.
The foreign court should grant divorce only on the grounds which are permissible under Hindu law.
The two conditions make it almost impossible for a Hindu couple married in India to get a legally valid divorce from a foreign court since no foreign court is an acceptable one underThe Hindu Marriage Act,1955 and also because no foreign court is likely to consider the provisions of The Hindu Marriage Act,1955 beforegranting divorce.
The exceptions that SC has permitted to the above rule laid by it are as follows in a case where husband has filed for divorce in a foreign land.
The wife must be domiciled and permanently resident of that foreign land and the foreign court should decide the case based on HMA.
The wife voluntarily and effectively attends the court proceedings and contents the claim on grounds of divorce as permitted under HMA.
The wife consents to grant of divorce.
Exception 1 seems almost impossible.
Exception 2: When she actively participates.
Exception 3 means that the divorce is obtained by mutual consent and therefore the courts of India does not want to interfere.
DID NOT ATTEND NOR ACTIVELY PARTICIPATED
The non applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as the non applicant did not submit to the jurisdiction of the foreign court. This however, does not mean that the non applicant is not even enquired to be served in the foreign court proceedings. Non service would amount to denial of opportunity to be heard.
As the non applicant did not submit to the jurisdiction it is further said that this non applicant did not chance a judgment is his / her favour. Challenge to the foreign court decree in such a situation may be entertained by Indian court.
The non applicant must be served with the notice of the foreign proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is situation, Indian courts are likely to declare the entire foreign court proceedings as void.
In recent case (March 2012) Sunder &Shyamala filed the knot in Vellore district in 1999 Sunder went to USA within a year and did not communicate with Shyamala after that in 2000, she received summons from Superior court of California, which subsequently granted divorce despite the wife’s defence statement. Madras HC held that the superior court of California was not a court of competent jurisdiction to decide the matrimonial dispute in this case.
Consequences of invalid decree of Divorce
It is not unusual for one It is not unusual for one of the partners to obtain a decree of divorce from a foreign court while the other partner is either in India or in some other part of the world. The partner who has obtained divorce may feel comfortable in the thought that the other partner has neither protested not contested the decree of divorce. However this comfort may be a false one. Assuming that the husband has obtained the decree of divorce from a foreign court, some consequences that may be faced by the man in due course are as follows: a) If he remarries, he may be prosecuted for bigamy. There is no time limit for the first wife to file a complaint with the police against the husband in the matter of bigamy. We have seen in the case of Y Narasimha Rao5 that the couple separated in 1978, the man remarried in 1981 and ten years later, Supreme Court ordered for bigamy proceedings to be started against the man. Bigamy is punishable under section 494 of Indian Penal Code with imprisonment of seven years. b) Wife (divorced as per foreign law) may file for maintenance. c) In case the man dies without making a will, the first wife will have the right to her share in the property of the man while the second wife will get nothing because her marriage will not be considered legitimate. It may be noted that the above may be faced by the man even though he may have acquired the citizenship of the foreign country (assuming that his domicile or his heart remains Indian). If a women gets divorce from a foreign court and remarries, her new husband may be prosecuted under section 497 of Indian Penal Code under which he may face imprisonment of five years. The wife will, of course, be liable for punishment under section 494 of Indian Penal Code for bigamy.
To sum up one can say that exceptions aside, a Hindu couple married in India must seek divorce from an Indian Court only.
The two notable exceptions (when a foreign decree of divorce is valid)
When the couple decides to take divorce by mutual consent.
When the person who is contesting divorce attends divorce proceedings and the foreign court grants divorce on ground that are permitted grounds of divorce under HMA.
One should not draw comfort from inaction of the person who did not participate in divorce proceedings. The implications of an invalid divorce may appear many years later and even may arise after the death of the person who got the invalid divorce from the foreign court.
Execution of foreign decree
Under Indian law, execution of decree whether foreign or domestic is governed by the provisions of The Civil Procedure Code,1908 as amended from time to time. Under Indian law there are 2 ways of getting a foreign judgment enforced. Firstly by filing a execution petition under:-Section 44-A of The Code Of Civil Procedure 1908(in case conditions specified therein are fulfilled.)
Secondly by filing a suit upon the judgement of foreign decree.
Under section 44-A of CPC, a decree of any of the superior courts of any reciprocating territory are executable as decree passed by the domestic court. In case, the decree pertains to be of a country which is not a reciprocating territory then a fresh suit have to be filed in INDIA on the basis of such decree or judgment which may be construed as a cause of action for the said suit. In the fresh suit the said decree will be treated as another piece of evidence against the defendant. However in both the cases the decree has to pass the test of section 13 of CPC which provides certain exceptions when the decree is not enforceable.
Now, in the present case, the foreign decree can be executed by filing a suit in Indian court. A fresh still have to be filed in Indian by Harpreet on the basis of foreign decree or judgment which has been passed ex-parte. This can be construed as a cause of action for the said suit.
In the fresh suit the said decree will be treated as another piece of evidence against the defendant. The decree to prove valid has to pass the test of Section 13 of CPC which provides about the foreign decrees and certain exception when the decree is not enforceable.
In this case, it is falling in the ambit of exception of section 13 of CPC that foreign of judgment is not conclusive, when it has not been pronounced by the court of competent jurisdiction. In this case, as the matrimonial law has to be followed by foreign court, the decree which has been passed is not according to Section 19 of HMA, 1955. The provision of Section 19 has been violated and the foreign court has no jurisdiction to entertain this case and ignoring this fact an ex-parte decree has been passed. As wife has not submitted herself to the jurisdiction of foreign court so this decree is null and void in Indian courts and moreover as this is without jurisdiction of foreign court, this decree cannot be executed in India as it is falling under exceptions of section 13 of CPC.
The ex-parte decree on the foreign decree has no value in the eyes of Indian law and such decree has no binding effect in India. Taking the consequences of invalid decree of divorce when the husband dies without making a will the first wife i.e. Harpreet will have the right of her share in the property of the deceased husband while the second wife is not entitled to any share in the property because her marriage is considered to be a void marriage in eyes of Indian law.
Inheritance of property by Harpreet Kaur by virtue of The Hindu Succession Act,1955
As, Harpreet Kaur is the legally wedded wife of deceased Randeep Singh, so acc to Section 8 of Hindu Succession Act, 1956 she falls in the category of “CLASS 1” heir and according to the list in class 1 heir, there is son, daughter and widow occupies the third position in this list. As there there is no child out of this wedlock so, Harpreet Kaur( widow of Randeep) has entire right to inherit the property of deceased Randeep Singh.