Two out of 10 marriages of an Indian woman with a Non- Resident Indian (NRI) reportedly end with the wife being abandoned and the husband obtaining an ex parte  decree of divorce. The pattern of NRI wife abandonment falls into three types: (a) a woman who is residing with her husband in a foreign country suddenly finds her husband has disappeared leaving her in the lurch; (b) a woman who has been residing abroad with her husband is either deceptively and/or coercively taken back to India and left there without her passport, visa, and money and thus without any way of rejoining her husband; and (c) a woman who is married before her husband migrates to a foreign country but is never sent sponsorship for a visa to join him. Alternatively, a man who is already living abroad may return to India to marry and then leave with promises to send for his bride. However, the visa papers never arrive. Since a large number of such marriages take place hurriedly, mostly when men come back to India for a visit, the women have been popularly labelled “holiday brides.” The phenomenon of wives abandoned by their NRI husbands has been growing invisibly for more than a decade. Nearly every Indian state has women deserted by NRI men who live in various foreign countries including Canada, UK, European and Middle Eastern countries, and the USA.

The issues relating to marriage and matrimonial causes in conflict situations have gained a significant role as many Indians have settled abroad and have resorted to legal remedies as an answer to their marital problems. It is necessary to address these problems in the legal context so as to raise awareness among those who have been affected. Marriages involving Non-Resident Indians (NRIs) raise issues that need to be governed by rules of private international law. By and large, there is a common understanding of the principles governing the subject. However, the individual state practices differ from one another in view of differing needs and necessities. It has to be noted that the problems of failed NRI marriages are faced by Indians mostly belonging to middle class who seek greener pastures in the developed world. Legal remedies tot eh problems faced by victim spouses in India requiring responses from their spouses in developed countries do not have easy answers in actual state practice.

The major issues are validity of marriage and matrimonial causes, including recognition and enforcement of foreign divorce decrees in India. A few of the principles of private international law relating to the issues referred above have been codified in the Indian legislations. The Indian state practice is characterised by the presence of various personal laws owing allegiance to different religions. In India, there is no uniform practice in matters relating to matrimonial causes. Till 1991, issues relating to divorce and jurisdictional bases were addressed by the Indian courts on the basis of English principles, i.e Lex domicile. This approach, however, does not address certain fundamental issues which are more prevalent in NRI marriages. This resulted in broken and limping marriages, when the dissolution of marriage is recognised in one country but not in other countries.

Recognition and Enforcement of Foreign Matrimonial Causes Decrees

A foreign matrimonial causes judgement may be in relation to dissolution or annulment of marriage including legal separation. Common law principles as applied to recognition of foreign divorce decrees, did not form part of Indian judicial verdicts on the subject. Instead, provisions of section 13    of CPC, 1908 are being applied consistently to test the conclusiveness of the foreign judgement. For purposes of recognition of a foreign divorce decree the test laid down in Section 13(a), CPC has been applied by courts in India, i.e. the foreign decree must have been from a ‘competent court’. “A foreign decree of divorce granted by a competent court would be recognised in India under section 13(a), CPC, and section 41, Indian Evidence Act. The competence of a foreign court is judged on the basis of Private International Law. Hence a decree of the court of domicile only would be recognised. Ina Rangoon case (pre-independence) a foreign divorce decree was given effect to on the basis of section 13(a) of CPC in the context of a suit filed in (British India) for maintenance of wife.

In the post- independent India courts continue to follow provisions of Civil Procedure Code (1908). Being the general law of the land for the recognition and enforcement of foreign judgements in India, section 13 and 44 A form the core of law, also recognition and enforcement of foreign divorce and allied decrees in matrimonial matters. In the first reported case, Joao Gloria Pires v. Ana Joaquina Rodriguese Pires, in 1967 the, the court observed, “In India the relevant law is to be found in Section 13 and 44A of Civil Procedure Code of 1908. Broadly speaking these provisions law down two methods of implementing foreign judgement.  The method of filing a suit on the basis of foreign judgement and then carrying out the decree made by the Indian court. The second method visualises the execution of the decree of the foreign court straight away by a district court in India if there is any reciprocal arrangement between India and the country in which the foreign judgement sought to be executed is given.

The two Supreme Court cases, viz., Satya v. Teja Singh, and Y. Narsimha Rao v. Y. Venkatalakshmi, have dealt with the Indian law directly. The former discussed at length the legal position in UK and USA as regards recognition of foreign divorce decrees. The apex Court in Satya’s case perused the legal regime of private international law in general and in particular the same as practised in India. The Supreme Court in this case made it very clear that recognition of a foreign divorce decree in India ‘must depend principally on the rules of our private international law’. Justice Chandrachud delivering the verdict further observed: ‘Such a recognition is accorded not as an act of courtesy but on consideration of justice. It is implicit in the process that the foreign law must not offend against our public policy’. The apex court also cautioned of limping marriages that result due to non-recognition of divorce given in foreign jurisdictions. It opined that ‘principles governing matters within the divorce jurisdiction are so conflicting in the different countries that not un-often a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. We have before us the problem of such a limping marriage’. In the absence of any codified law as regards enforcing a foreign divorce decree, the Supreme Court relied on section 13 of CPC. As the judgement in this case having been pronounced in Nevada (US) in a civil proceeding, its validity in India was determined on the terms of section 13 of CPC.

Consistent dependence upon the provisions of the Civil Procedure Code resulted in the Law Commission’s 65th Report on this subject in 1976, which could not improve the situation. Again the apex court toiled and addressed itself to the larger question as to whether the courts in this country should recognise foreign divorce decrees in Y. Narasimha Rao v. Y. Venkatalakshmi. In this case although the provisions of section 13 of CPC were restored again, the route and interpretations were positively different from the earlier decisions.

In its efforts to remedy the situation the apex court provided a contextual interpretation to the provision of section 13, CPC with ample safeguards in the form of definite position as regards applicable law and jurisdiction for divorce. Taking the judicial initiative the Supreme Court in Y. Narasimha Rao v. Y. Venkatalakshmi aptly observed:

‘We cannot lose sight of the fact that to-day more than ever in the past, the need for definitive rules for recognition of foreign judgements in personal and family matters, and particularly in matrimonial disputes has surged to surface… A large number of foreign decrees in matrimonial matters is becoming order of the day. A time has, therefore come to ensure certainty in the recognition of foreign judgement in these matters. The minimum rules of guidance for securing the certainty need not wait legislative initiative. This court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose… [A] beginning has to be made as best one can, the lacunae and errors being left to be filled in and corrected by future judgements’.    

The Supreme Court deduced the following rule in Y. Narasimha Rao v. Y. Venkatalakshmi for recognising a foreign matrimonial judgement in India: ‘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 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… And contest 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 relief although the jurisdiction of forum is not in accordance with the provisions of the matrimonial law of the parties.

The Supreme Court thus rendered these guidelines within the framework of the present statutory provisions of Civil Procedure Code.

Indian state practice, in the context of recognition of foreign divorce decrees, has been witnessed in the realm of the ‘real and substantial connection’ doctrine also. This doctrine is broadly based upon the prevalent statutory rules for recognition of foreign divorce decrees. This doctrine was first introduced in England in Indyka v. Indyka, wherein the law lords in deciding the case recognised a foreign decree for divorce on the ground that the petitioning spouse had a real and substantial connection with that foreign court. Indeed Lord Wilberforce justified the doctrine thus: ‘Recognition might be given to decrees given on a resident basis, either generally or in the particular case of wives living apart from their husbands where to subject them uniquely to the law of their husband’s domicile would cause injustice, and where the jurisdiction of the court of the country of residence is appropriate… [w]herever a real and substantial connection is shown between the petitioner and the country or territory, exercising jurisdiction’.

The above mentioned dictum, laid down in Indyka v. Indyka, was again followed by the Bombay High Court in Shiv Indersen Mirchandani v. Natasha Harish Advani. It was observed in this case, ‘In Indyka v. Indyka, the departure from the established doctrine laid down in Le Mesurier’s case justified mainly on the ground that rule operated as tyrannical, unjust, unrealistic and inconsistent with the modern trend and international comity. Besides it creates the problem of “limping marriages” in the modern time where there are more marriages between persons of different nationalities than there used to be previously’.

Conclusion  

The Indian state practice concerning marriage and matrimonial causes in private international law has by and large, initially followed English law. The differing trends became visible when the jurisdictional bases and applicable law of matters of status began affecting the social fabric in matrimonial sphere. The established rigid legal positions turned out to be unbearable to the weaker sections of the society, in particular, women who consequently became victims of transnational matrimonial disputes. Reform in this sphere has a long and difficult route. Unification of laws is also riddled with numerous problems both in terms of policy matters and implementation of treaty obligations. The glaring illustration is the question relating to applicable law to divorce. the Indian position is that the law under which the parties are married has a dual role of providing governing law for divorce as well as the basis for jurisdiction. On the other hand, lex domicili is the generally held view on both counts. The rationale of this view is that marriage and divorce being questions of personal status are governed by personal law whose basis is domicile.  

BY DR. PRITI RANA