The subject of foreign divorce in India sounds quite complicated and people are hardly aware of the legalities involved with it. First and foremost, it is essential to understand the meaning of foreign divorce. The issue arises when a marriage, which is sanctified in India, is taken in front of the foreign court for dissolution. Such an event produces uncertain questions, which need to be comprehended, both technically as well as fundamentally.
The questions that need answers are whether person of Indian origin or NRIs can file a case of divorce in a foreign country? Whether the decree of divorce permitted by a foreign court is valid in India?
Let’s take a glance at the interpretations made by the Indian legislative and judiciary system on the subject of a foreign divorce.
- If the divorce is settled by mutual consent between the NRIs and is granted by the foreign court then it is legally binding as well as valid. Section 13 and 14 of the Code of Civil Procedure and in consideration to the comity of nations, this validation is accepted by Indian Courts and is not required to be further validated in India.
- If the divorce is not by mutual consent and the decree of divorce is granted by the foreign court then:-
If the matter is disputed by both the parties involved in divorce but the decree is granted by the foreign court after due adjudication as well as trial proceedings, then divorce is valid and legally binding in India provided the grounds of obtaining divorce should also be acceptable and available in Indian books of law.
If the matter is not disputed in a foreign court and anyone party (generally wife) comes back to India, where marriage is solemnized, then the decree of divorce granted by the foreign court is not valid and will not be applicable in India.
The party approaching the Indian court has an option to prevent the other spouse from initiating any proceedings in foreign court by way of filing a case in India. In this case, an Indian court has jurisdiction over its citizens. Also, Exparte's decree of divorce as given by the foreign court will not be accepted by India courts.
All the other relating issues to foreign divorce including child custody, annulment, maintenance, etc. follow the same legal principle i.e. to consider the welfare of the child, which stands in priority by any court in India or foreign countries.
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