The matrimonial laws varies from one country to another. When a decree is passed in one country and it is to be executed in another that is called as a foreign decree. Nowadays it has become common that people migrate to different country for employment and then if not compatible with spouse then file for divorce and attain a foreign divorce decree. The query crops up, that what is the legal validity of a foreign divorce decree in India? Now let’s discuss it in detail below.
Foreign Court and judgment
Section 2(5) of the CPC defines ‘Foreign Court’ as a Court situated outside India and not established by the authority of the Central Government.
Sec 2(6) of the CPC defines ‘foreign judgment’ and states that it means a judgment that has been given by a foreign Court.
The expression recognition of the foreign decree means that the judgment of one country is to be accepted in the court of another country without going into the facts of the case and directly proceeding towards the execution of the judgment without any delay. Recognition of a decree can be denied if the judgment of the other country is not compatible to the fundamental legal principles in the recognizing country.
Analysis of divorce decree granted by Foreign Courts:
It could be divided into two categories:
- Mutual consent divorce [granted by Foreign Court]
- Contested Divorce decree [granted by a Foreign Court]
The Courts in India have the authority to recognize and enforce a foreign judgment. This is possible if a part of the judgment or decree has already been satisfied or if the court has declared a part of the judgment or decree invalid.
Mutual divorce decree
In Indian courts, the decree granted by a Foreign Court is legal, valid and binding as per Section 13 and Section 14 of the Civil Procedure Code, 1908 (CPC). According to Section 13 of the CPC there is a condition when a foreign judgment in India would not be considered valid and Section 14 provides that when the Courts in India would consider the foreign judgment conclusive in nature. Note that a decree not affected by Section 13 of the CPC needs no validation in India and it shall be considered conclusive u/s 14 of the CPC.
Contested divorce decree
Now, let’s discuss the cases where a foreign divorce decree would not be considered conclusive:
- In case of an ex-parte decree passed by a Foreign Court, it shall not be considered in India as valid and conclusive. If the opposite party willingly evading service of summons then it shall not be considered as an ex-parte decree. This is only when attempts are made and the service of summons could not be procured.
- When divorce is filed on some other grounds than the grounds enumerated in the Hindu Marriage Act wherein the parties were married under Hindu Law, as a divorce matter is governed by the law under which one gets married and not the law of the land where the party is residing.
Execution of a foreign divorce decree in India:
This could be executed in the following two ways:
- File an execution u/s 44A of the CPC. Section 44A of the Code states that a decree passed by Foreign Court can be executed in India in the same way as if the decree has been passed by the Indian Court itself.
Section 44A of the CPC would apply to the execution of foreign decrees. But when it comes to specific laws such as the Hindu Marriage Act, 1955 or the issue pertaining to child custody, Section 44A does not have much scope in such cases. Section 44-A sub-section (3) of the Code makes it clear that the provision is subject to the decree falling in any of the exceptions provided under Section 13 CPC.
- It could be done by filing a suit of a foreign judgment/decree for its enforceability. This may be understood in simple terms i.e. if a decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, the decree is not directly executable in India. It means that a foreign court decree is altogether a foreign piece of evidence and shall not have weightage in Indian Courts.
Essentials of Section 44A that enables the foreign judgment to be executed in India:
It must be:
- Of a reciprocating country;
- Of a superior court;
- Conclusive/final;
- Not an exception mentioned u/s 13 of the CPC.
Reciprocating countries
This comprise of any country or territory situated outside India that the Central Government declared as a reciprocating territory through a notification in the Official Gazette referred to as a “Reciprocating territory”, and “Superior Courts” in respect to such territory.
Non-Reciprocating country:
The countries that are not reciprocating country for India, the execution of the decree or a judgment from such countries or territories can be executed only through a fresh suit in an Indian court for 3 years as specified under the Limitation Act 1963. For the period of limitation the date of the judgment passed by the foreign court is the beginning of the limitation period.
View of the Supreme Court
In the case of Bank of Baroda v. Kotak Mahindra Bank (2020), the Supreme Court ruled on the limitation period for the execution of a foreign decree u/s 44A of the CPC. It was laid down by the Apex Court that Section 44A of the CPC only empowers a District Court to execute a foreign decree but it does not have the power to deal with the period of limitation. The limitation period of 12 years from the date of the decree which applies to Indian decrees will not apply to foreign decrees under Section 44A of the CPC. The law of the reciprocating territory whose Superior Court passed the decree, shall be used to determine the limitation. The period of limitation for making an application for execution of a foreign decree is 3 years from the date on which the right to apply accrues.
Conclusion
It can be concluded to say that a decree passed by a Foreign Court has either to be executed under Section 44A of the CPC or a fresh suit is to be filed for the enforcement of the decree. It holds conclusiveness under Section 14 of the CPC if it passes the test u/s 13 of the CPC, as discussed above.
