Can a foreign court divorce order apply to marriages in India? What courts have said

The Gujarat HC’s ruling has highlighted how Indian personal laws travel with individuals, and how grounds of irretrievable breakdown remain absent in the HMA, even after the Supreme Court granted a divorce under it in 2023.

Case facts

An Indian-origin couple, married under the HMA in Ahmedabad in 2008, moved to Australia and acquired its citizenship. They later returned to India, but by 2016, the husband had filed for a divorce decree with the Federal Circuit Court of Australia.

He cited “irretrievable breakdown of marriage” as the reason for wanting a divorce. While receiving a notice in Ahmedabad, the wife challenged the Australian court’s jurisdiction, pointing out that their marriage had been solemnised under the HMA and that the statute does not permit dissolution on this ground.

Despite her objections, the Australian court granted the divorce decree and rejected her review application. The court said that “under section 13 of the Hindu Marriage Act 1955, it does not appear that the husband has a prima facie basis to obtain a divorce if the wife opposes a divorce being granted. Consequently, the remedy of divorce only appears to be available to the husband in Australia. Being an Australian citizen and resident, the husband is entitled to the benefits and protections of Australian law.”

The woman filed a suit for restitution of conjugal rights in the Ahmedabad family court to prevent the dissolution of the marriage. However, the court dismissed the suit, stating that since both parties were Australian citizens, the Australian court’s granting divorce was valid and binding.

Whether foreign laws on divorce apply in India

India does not have a codified private international law for dealing with disputes concerning people who live in different countries. In its absence, judges fall back on existing statutes and past rulings. For marriages performed under the Hindu Marriage Act, the position has been clear: the personal law continues to govern the dissolution of marriage, no matter where the couple later lives, or their citizenship.

Foreign divorce decrees are not automatically valid in India. Two provisions of the Code of Civil Procedure (CPC) are central to this — Sections 13 and 14. The former states that a foreign judgment is conclusive, unless it falls within certain exceptions. These include cases where the judgment was delivered by a court without jurisdiction, was not on the merits, or applied a law not recognised in India.

Section 14 provides that a foreign judgment is presumed valid unless the contrary is proved, but this presumption is easily rebutted with Section 13.

Additionally, the Hindu Marriage Act specifies the limited grounds on which a Hindu marriage may be dissolved, including cruelty, adultery, desertion, or mutual consent. Thus, the Gujarat HC held that the Australian decree could not be recognised.

HC’s observations

The HC disagreed with the family court, stating that the couple’s later citizenship did not change the law governing their marriage, and the dissolution could only happen under the HMA.

The bench noted that although several Law Commission reports and even the Supreme Court had on occasions urged Parliament to include irretrievable breakdown as a ground for divorce, the legislature had not acted on those recommendations. That absence, the court said, was not incidental but deliberate, reflecting the way Hindu marriages have been legally conceived in India.

“A Hindu marriage conducted in India in accordance with religious ceremonies and customs will always be governed by the provisions of the HMA… even if the parties acquire a new domicile or citizenship of any country in the world,” the judges observed.

The court further clarified that foreign courts cannot apply their own divorce law to an HMA marriage. At most, they may dissolve the marriage by applying the provisions of the HMA if the parties submit to its jurisdiction. Since the wife in this case had objected to the jurisdiction, too, the decree had no legal effect here.

Supreme Court precedent

The benchmark for how India treats foreign divorce decrees was set more than three decades ago in Y. Narasimha Rao v. Venkata Lakshmi (1991). In that case, the husband had gone to court in the United States to seek a divorce, while the wife continued living in India and never accepted that court’s authority.

When the matter came before the SC, the judges refused to recognise the decree. They said it was granted on grounds absent under Indian law, and by a court that was not competent to dissolve an HMA marriage.

The ruling laid down two clear rules. For a foreign divorce to be valid in India, the ground of divorce must be recognised by Indian law, and both spouses must have freely and completely agreed to place themselves before the foreign court. If either condition is missing, the decree has no effect in India.

However, the Supreme Court has earlier granted divorce on the grounds of irretrievable breakdown in 2023, in Shilpa Sailesh v. Varun Sreenivasan, under Article 142(1) that allows the top court “to do complete justice” in any matter before it.

The five-judge Constitution Bench led by Justice S K Kaul, however, said that the “grant of divorce on the ground of irretrievable breakdown of marriage… (is) not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties”.