DIVORCE, ANNULEMENT, CHILD CUSTODY : Issues Amongst NRIs, Indian’s Living Abroad
Divorce itself is complicated. Complication compounds and aggravate when it involves Indian Law of Divorce and Foreign Divorce and issues arising out of the same.
General questions that arise from such situation can be summed up as “Can a marriage which is solemnized in India dissolved by foreign Court? Can Indian’s living abroad (for eg US) file a case for Divorce in foreign Court say US Court ??? Whether a decree of divorce granted by foreign Court say US Court is valid, legal and binding in India?? Whether an exparte decree of divorce granted by foreign Court, say US court, will be valid and binding in India? Can Indian Court restrain a spouse who has instituted divorce proceedings in foreign country?? Can a person file for divorce in foreign country (say US Court)? Is it necessary that if a divorcee decree is obtained from foreign Court( say US Court) need to validated in India by Indian Courts.
Answer to aforesaid questions differs from situation to situation and case basis. However, as per Indian Law as interpreted by Indian Court including the Supreme Court of India on NRI divorce issues, settled position can be stated as under : Mutual Consent Divorce amongst NRIs, etc: Generally a mutual consent divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign Courts need not to be validated in Indian Courts. However, as a matter of abundant precaution, one can approach to the Indian Court for declaring that divorce is valid and binding.
Contested Divorce in foreign Court can be valid and binding depending upon on the below equation:
Matter is contested by both spouses in foreign Court.
Matter is uncontested in foreign Court and one spouse comes back to India(Generally wife)
In the event, matter is contested between parties in foreign Court-say US Court, and after due adjudication and trial, divorce is granted by the foreign Court, same will be valid and binding in India. However, it is necessary to be kept in mind that ground which parties seek to obtain divorce should also be available in India.
In case matter is uncontested, one party comes back to India where marriage had taken place and contest proceedings in India, divorce as granted by foreign Court will not be applicable in India. Party which comes back also has an option of filing a case in India to prevent the other spouse from proceeding in foreign Court. Indian Court has jurisdiction over its citizen. Ex-parte decree of Divorce granted by foreign Court will not be recognized by Indian Court.
Other issues like child custody and maintenance goes by the same principal. In Child Custody cases, special care and circumstances are always taken care of and the principal as explained above may vary. However, universal principal remains constant in guiding the issue of the child custody by any Court in India or foreign Court is the welfare of the child. Welfare of the child depends upon variety of factor.