Married in India but Divorced in US

By at 21 July, 2010, 7:03 pm

Everyone celebrated their wedding. The groom was an NRI engineer settled in Boston who came to Punjab to marry Manjeet, a beautiful village girl. No one had ever anticipated that this fairy tale would turn into a nightmare until the groom decided to abandon Manjeet and marry again.

He obtained a divorce decree in US. Subsequently, Manjeet filled a petition in an Indian Court. The court declared the divorce null and void although it hardly had jurisdiction over the foreign decree. Now, her husband is divorced in States but married in India.

According to NCW more than 50 women are facing the issue in Gujarat, Punjab and other parts of the country.

Problem

In such divorce cases the conflict of Private International Law becomes evident. Usually, one party obtains a divorce decree aboard which is not recognized in the Indian Courts on the ground that the foreign court had no jurisdiction over the matter. As a result the marriage is recognized in one country but annulled in the other. Such a person may be tried for Bigamy in India but in the other country he would not be considered guilty.

EX-PARTE JUDGEMENT:

An ex-parte divorce happens when only one spouse participates in the court proceedings.¬† In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually,the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present.

Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.


Recognition of foreign Judgments in India:

The Section 13 of Code of Civil Procedure deals with recognition of Foreign Judgments in India. SC in various decisions noted that a court would have competent jurisdiction if it recognizes the Act or law under which the parties are married. Further, If any foreign judgment is opposed to natural justice, founded on breach of Indian law or obtained by fraud; it would not be recognized in India.

For a court to have competent jurisdiction both the parties must voluntarily and unconditionally submit themselves to the jurisdiction of the said court.

In a leading judgment SC of India ruled :-

1. No marriage between an NRI and an Indian Women which has taken place in India may be annulled by foreign court.

2. Provision may be made for adequate alimony for wife in the property of husband in India and abroad.

Legislations In Other Countries

The (English) Foreign Marriage Act, 1892 in England and Marriage (Overseas) Act, 1955 in Australia provide for a form  of marriage which may be availed by the parties marrying abroad where on of the citizens where at least one of the person to the marriage is a citizen. However, the acts do not affect the validity of these marriages.

Law Commission in its report proposed a legislation similar to the two for addressing the issue of foreign marriages. It suggested that the parties at the time of marriage must be free to choose the law by which they would be governed. Moreover, Indian citizenship should be a prerequisite for the parties to avail the benefits of the proposed legislation.

Recommendations

Precautions by the family:-

1. The family must verify credentials of the groom and his family. They must check his address proof, passport details, his place of work etc.

2. The girl must be made aware of her rights in the foreign country.

3. She must have a separate bank account near her place of residence in case of any emergency.

4. Marriage must be registered.

5. A photocopy of the groom’s passport and other credentials must be kept with the family.

Steps to be taken by the government

1. Registration of the marriages must be made compulsary.

2. Bilateral Agreement must be signed with other countries.

3. Spreading awareness and releasing information booklets to prevent fraudulent marriages.

4. Setting up of special cells for counseling and free legal advice in various states.

5. Collaboration with Ministry of Overseas Indian Affairs to deal with the issue.

6. There should be a uniform law for recognition and enforcement of foreign judgments in relation to matrimonial disputes.

7. Assistance must be provided to NRI wives.


I dedicate this post to one of our readers Mr. Pukhraj Mittal who suggested this topic in one of his comments on Legal Drift.

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Categories : Legal Mirror | World

Comments
Pukhraj Mittal July 23, 2010

Meghna, I feel happy that you have made good efforts to study and highlight issues of which very few people are aware. This becomes significant when so many techies go abroad for extended period. Good work, keep it up.

meghna July 23, 2010

thanks a million. It feels great to hear this from you. I’m glad the post met your expectations.

yukti gupta August 3, 2010

can you please tell me the name of the case

meghna August 3, 2010

It is
Neeraja Saraph v. Jayant Saraph AIR 1975 SC 105.

yukti gupta August 11, 2010

hi .. thank u for the citation but i guess there is some prob with the citation … please check it n lemme know……………… thank you in anticipation

meghna August 11, 2010

Smt. Neeraja Saraph v. Shri Jayant V. Saraph, JT 1994 (6) SC 488

You may refer this alternative citation as well.

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