Jojy George Koduvath.
PART – I
Foreign Divorce Judgment:
Sec. 13 of the Civil Procedure Code lays down the provision as to the applicability of the foreign judgment. From Sec. 13 of the CPC it is clear –
- For the foreign judgment to be ‘conclusive’, it must have been
- passed by a court having competent jurisdiction,
- given the verdict on merits and
- observing natural justice.
Sec. 13 reads as under:
- “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 fact 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.”
Competent Court – Decree ‘in accordance with the matrimonial law’
For accepting a foreign judgment as valid, it should have been passed by a ‘competent court’ according to S. 13(a). What is court of competent jurisdiction is not explained in the CPC. Our Apex Court held in Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, that the general rule is that the decree passed must have been ‘in accordance with the matrimonial law under which the parties are married’.
Court of Competent Jurisdiction – Three Exceptions
In Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, the Supreme Court laid down following three exceptions to the general rule that ‘decree passed must have been in accordance with the matrimonial law under which the parties are married’. They are –
- (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
- (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;
- (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
In the light of S. 13 of the CPC, read with the observations of Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, even when a foreign divorce decree is granted by a forum, jurisdiction of which is not in accordance with the provisions of the matrimonial law, it is accepted as valid in India, if the decree is passed on any one of the circumstances that invite the exemption (ii) or (iii).
Consented Decree – Non-compliance of Provisions of Matrimonial Law, Immaterial
In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)
Read Blogs: Validity of Foreign Divorce Decrees in India
Consented Decree – Non-compliance of provisions of Matrimonial Law immaterial
In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)
PART – II
JURISDICTION OF FORUM IN ACCORDANCE WITH PROVISIONS OF MATRIMONIAL LAW
To determine whether the Foreign Court was a forum having jurisdiction ‘in accordance with the matrimonial law’ we have to look into the the ‘Marriage Laws’ applicable in India and the ‘Grounds’ stated therein for judicial actions.
Marriage Acts Applies to Christians
Following are the Marriage Acts that applies to Christians in India-
- Indian Christian Marriage Act, 1872
- Cochin Christian Civil Marriage Act, 1920
- Special Marriage Act, 1954
- The Foreign Marriage Act, 1969
Indian Christian Marriage Act, 1872
The Indian Christian Marriage Act, 1872 applies to ‘Indian Christians’. According to the definition of the Act ‘Indian Christians’ ‘includes the Christian descendants of natives of India converted to Christianity, as well as such converts’.
Law Applicable to Christians in Manipur and Erstwhile Travancore- Area of Kerala
The Indian Christian Marriage Act, 1872 is not applicable to Christians in erstwhile Travancore- area of Kerala, and Manipur, even now. The marriage law applicable to Cochin area of Kerala State was the Cochin Christian Civil Marriage Act, 1920.
In these parts customary rules and personal laws (e.g. Canon for Catholics) hold the field. The area of erstwhile Travancore, now stands included in Tamil Nadu is governed by the Indian Christian Marriage Act because of the enactment of the Indian Christian Marriage (Extension to Transferred Territory) Act, 1995.
Special Marriage Act, 1954
The Special Marriage Act, 1954 enables the citizens of India, irrespective of religion, to have their marriage registered for civil recognition. Marriages solemnized under this Act are not governed by their personal laws. The act lays down the qualifications for the parties to the marriage and it also deals with restitution of conjugal rights, Judicial separation, divorce, custody of children, etc.
It specifies that Indian Succession Act governs succession of the parties to the Special Marriage. But, Hindu Succession Act applies to Hindu, Buddhist, Sikh or Jain as regards the succession.
Sec. 15 of the Act allows to register marriages conducted in other forms. It reads as under:
- “15. Registration of marriages celebrated in other forms―Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely―
- (a) a ceremony of marriage has been performed between the parties and they have .been living together as husband and wife ever since;
- (b) neither party has at the time of registration more than one spouse living;
- (c) neither party is an idiot or a lunatic at the time of registration;
- (d) the parties have completed the age of twenty-one years at the time of registration;
- (e) the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
- (f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
Indian Divorce Act, 1869
It is noticeable that the matters relating to divorce, nullity of marriage, judicial separation, restitution of conjugal rights, etc. of the Christians, except those who had married under the Special Marriage Act, are governed under the Indian Divorce Act, 1869.
The Foreign Marriage Act, 1969
The Central Government appoints Marriage Officers in foreign countries under the Foreign Marriage Act, 1969. The Act provides for conditions and procedures relating to solemnization and registration of foreign marriages.
By virtue of Sec. 18 of the Foreign Marriage Act, succession to property, restitution of conjugal rights, judicial separation, determination of void and voidable marriages, legitimacy of children, divorce, various judicial proceedings, etc. of the parties married under the Foreign Marriage Act is governed under the respective provisions of the Special Marriage Act, 1954
Grounds for Dissolution under the Spl. Marriage Act (so also Foreign Marriage Act, 1969)
- 27. Divorce—(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent—
- (a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
- (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); [***]
- (d) has since the solemnization of the marriage treated the petitioner with cruelty; or
- (e) 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 respondent, and whether or not it requires or is susceptible to medical treatment; or
- (f) has been suffering from venereal disease in a communicable form]; or
- (g) has [***] been suffering from leprosy, the disease not having been contacted from the petitioner; or
- (h) 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 the respondent if the respondent had been alive; [***]
- Explanation.—In this sub-section,
- the expression “desertion” means 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) A wife may also present a petition for divorce to the district court on the ground,—
- (i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
- (ii) 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.]
- (2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court 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 one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Grounds for Dissolution under the Indian Divorce Act
The grounds for dissolution of marriage are given in Section 10 of the Indian Divorce Act, 1869. It reads as under:
- “10 Grounds for dissolution of marriage.
- (1) Any marriage solemnized, whether before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent
- (i) has committed adultery; or
- (ii) has ceased to be Christian by conversion to another religion; or
- (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- (iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
- (v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
- (vi) 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 the respondent if the respondent had been alive; or
- (vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or
- (viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or
- (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
- (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
- (2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.”
S.10A of the Divorce Act speaks as to dissolution of marriage by mutual consent. It reads as under:
- “10A. Dissolution of marriage by mutual consent.
- (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
- (2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.”
