Law Web: Whether Mutual Divorces Obtained In Foreign Courts Can Be Accepted As Conclusive In India?

Having regard to the need of the hour to have

definite rules for recognition of foreign judgments in personal and

family matters, particularly in matrimonial disputes, in Y.

Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451,

the Apex Court has interpreted Section 13 of the Code of Civil

Procedure as follows:

"20. From the aforesaid discussion the following rule can be

deduced for recognising a foreign matrimonial judgment in this

country. The jurisdiction assumed by the foreign court as well as

the grounds on which the relief is granted must be in accordance

with the matrimonial law under which the parties are married. The

exceptions to this rule may be as follows: (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."

It is thus evident that though the general rule is that a foreign

matrimonial judgment can be recognized in India only if the

jurisdiction assumed by the foreign court as well as the grounds

on which the relief is granted are in accordance with the

matrimonial law under which the parties are married, such

judgments can be accepted as conclusive in India where the

respondent voluntarily and effectively submits to the jurisdiction

of the forum and 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. As stated above, the

materials on record indicate beyond doubt that the petitioner and

his divorced wife 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. In the circumstances, I am of the view

that the courts in India have to recognise Ext.P4 divorce

certification.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

MR. JUSTICE P.B.SURESH KUMAR

23RD DAY OF SEPTEMBER 2016

WP(C).No. 26008 of 2016 (A)

AUGUSTINE KALATHIL MATHEW,

THE MARRIAGE OFFICER (SUB REGISTRAR),

Ext.P5 communication issued by the respondent is

under challenge in this writ petition.

2. The petitioner was married to one Dayana Cheeran

Chakunny. Both of them were working in United Arab Emirates

(UAE). The case of the petitioner is that he obtained divorce from

his wife by mutual consent from the UAE Personal Status Court.

Ext.P2 is the Memorandum of Understanding entered into by the

petitioner with his divorced wife in this connection and Ext.P3 is

the agreement entered into by them to subject themselves to the

UAE personal status law No.28/2005 for claiming divorce in terms

of Ext.P2 Memorandum of Understanding. Ext.P4 is the divorce

certification granted by the UAE Personal Status Court to the

petitioner. On the strength of Ext.P4 divorce certification, the

petitioner gave notice to the Marriage Officer in India under the

Special Marriage Act, 1954 to marry another lady. In response to

the said notice, the petitioner was informed by the Marriage

Officer that Ext.P4 divorce certification can be acted upon for

solemnizing the proposed marriage only if it is confirmed by an

Indian Court. Ext.P5 is the communication issued by the Marriage

Officer to the petitioner in this connection. According to the

petitioner, the Marriage Officer under the said statute is bound by

law to act upon Ext.P4 divorce certification issued by the UAE

Personal Status Court. He, therefore, seeks orders to quash

Ext.P5 communication and direct the Marriage Officer to

solemnize the marriage for which notice was given by him.

3. A statement has been filed in this matter by the

Marriage Officer. It is contended by the Marriage Officer in the

said statement that the petitioner and his divorced wife are

Christians; that UAE Personal Status Court from which the

petitioner obtained divorce does not recognize the law of India

applicable to the parties; that divorce obtained by the petitioner

is in accordance with Muslim Personal Law and that therefore, an

Indian court cannot accept the said divorce in the light of Section

13 of the Code of Civil Procedure.

4. Heard the learned Counsel for the petitioner and

the learned State Attorney for the respondent.

5. The petitioner and his divorced wife are citizens of

India belonging to Christian religion. Since they were married in

accordance with the Christian religious rites, it is beyond dispute

that they could obtain divorce only in accordance with the Indian

Divorce Act, 1869. The fact that UAE Personal Status Court does

not recognize the said law applicable to the parties is also not in

dispute. Section 13 of the Code of Civil Procedure provides that a

foreign judgment shall not be conclusive where it appears on the

face of the proceedings to be founded on an incorrect view of

international law or a refusal to recognize the law of India in

cases in which such law is applicable. The question, therefore, is

whether Ext.P4 divorce certification issued by the UAE Personal

Status Court can be accepted as conclusive for the purpose of

granting the relief sought by the petitioner in this writ petition.

6. Having regard to the need of the hour to have