Foreign Divorce Granted Ex-Parte On Irretrievable Breakdown Of Marriage Not Operational In India: Delhi Court

A Delhi Court has held that a divorce decree passed by a foreign court on the ground of irretrievable breakdown of marriage, in an ex-parte proceeding where the Indian spouse did not get an opportunity to present the defence, is not conclusive or operative in India.

Family Court Judge Purva Sareen of Saket Courts reasoned that irretrievable breakdown is not recognized as a ground of divorce in India, and that the Hindu Marriage Act primarily recognizes only two theories for divorce- the fault theory and the no fault theory.

The Court passed the order in a suit filed by a husband seeking an anti-suit injunction against his wife, seeking to restrain her from pursuing divorce proceedings before the Family Court of St. Louis County, Missouri, USA.

The couple had married at an Arya Samaj Mandir in Saket on December 20, 2015, and their marriage was subsequently registered before the District Magistrate.

Later, matrimonial disputes arose after the parties developed temperamental differences. The wife subsequently left for the USA and initiated divorce proceedings there. She sought dissolution of the marriage on the ground of irretrievable breakdown. She also sought custody of the child and alimony.

Meanwhile, the husband instituted proceedings for restitution of conjugal rights in India, seeking a direction to the wife to resume cohabitation with him and their minor son at their matrimonial home in Saket.

On April 20, the Family Court was informed that the wife had obtained an ex-parte divorce decree from the US Court.

The husband had then argued that since his anti-suit injunction application was filed before the US Court granted divorce, the foreign proceedings and decree should not defeat the relief sought by him.

Granting relief to the husband, the Family Court noted that the US judgment showed that divorce had been granted on the ground of irretrievable breakdown of marriage.

It further noted that irretrievable breakdown is not a ground which can be pleaded before Family Courts in India as a direct ground for divorce.

The judge observed that it is the Supreme Court which, in exercise of its powers under Article 142 of the Constitution of India, can grant divorce on the said ground to do complete justice in cases where the marriage is beyond repair.

“Section 13 of Hindu Marriage Act lists only fault based ground like cruelty, adultery and desertion and the ground of irretrievable breakdown of marriage is not recognized under Hindu Marriage Act. Further, the divorce sought by the defendant in the foreign court has been sought ex-parte and the plaintiff did not get a chance to put forward his defence,” the Court said.

Applying the principles enumerated under Section 13 and 14 of CPC which deal with applicability and enforceability of foreign judgment in the Indian Courts, the judge found that the US decree could not be treated as conclusive in India.

“Neither the judgment passed by the foreign court in the present case has been given on merits as the plaintiff never had a chance to present his case nor the judgment was as per rules of natural justice as the plaintiff was never given an opportunity of being heard,” the Court said.

“It is also observed that divorce was granted by the US Court on the ground of irretrievable breakdown which is not recognized in India. Hence, the judgment was also against the prevailing law recognized in India,” it added.

The judge concluded that the divorce was granted in the foreign court on neither of the theory recognized in India but on the ground of irretrievable breakdown of marriage. Hence, the judgment falls under the exceptions of section 13 of CPC, it said.

“Hence, the foreign judgment passed granting divorce to the defendant is not conclusive and held to be not operational in the courts in India,” the Court said.

It granted liberty to the husband to continue with his petition for Restitution of Conjugal Rights or any other petition in India as per law as the divorce granted by the foreign court was not conclusive and stood inoperative in India.

Counsel for Husband: Advocate Ashwin Garg

Counsel for Wife: Advocate Vivek Kishore