General questions that can arise for an NRI married in India are:
- Can a marriage which is solemnized in India dissolved by foreign Court?
- Can an Indian living abroad file a case for Divorce in foreign Court?
- Whether a decree of divorce granted by foreign Court valid, legal and binding in India?
- Whether an exparte decree of divorce granted by foreign Court valid and binding in India?
- Can Indian Court restrain a spouse who has instituted divorce proceedings in a foreign country?
- Is it necessary to validate in India, a divorce decree obtained from foreign Court?
The answer to aforesaid questions differs from situation to situation and on case case basis. It is important to understand the domicile of the NRI to decide of the jurisdiction of foreign court. However, settled position as per the Supreme Court of India on NRI divorce issues are as under :
FOR MUTUAL CONSENT DIVORCE IN FOREIGN COURT: 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.
FOR CONTESTED DIVORCE IN FOREIGN COURT: Such divorce can be valid and binding depending upon on the answer to the following question:
Was the matter contested by both spouses in foreign Court or was it uncontested in foreign Court and one spouse comes back to India (generally wife)?
In the event, matter is contested between parties in foreign 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. Welfare of the child is the most important factor in Child Custody cases.
We at SN Legal, Advocates & Solicitor, are equipped in providing appropriate divorce solutions applicable to your scenario. Please contact us for consultation.