Jurisdiction over Divorce-India/US Research

Author: LegalEase Solutions

QUESTIONS PRESENTED

  1. Can a US Court have jurisdiction over a divorce proceeding instituted by an Indian citizen? 
  1. Can a US Court’s orders be binding over a defendant in a divorce proceeding instituted in US when the defendant is residing in India?

 

SHORT ANSWERS

  1. A US Court has jurisdiction over a divorce proceeding instituted by an Indian citizen if the parties last resided together in US or if either of the parties submits to the jurisdiction of the US Court and participates in the proceedings on the receipt of the summons.
  1. A US Court’s decision and order is binding on an Indian defendant in a divorce proceeding instituted in US when the defendant is residing in India if the order satisfies all the conditions provided in Section 13 (a)-(f) of the India Code of Civil Procedure. Such an order may be enforced by instituting a suit before the District Court per Section 44-A of the Code.

 

RESEARCH FINDINGS

  1. Can a US Court have jurisdiction over a divorce proceeding instituted by an Indian citizen?

 

Generally, “[i]n a matrimonial case, jurisdiction of the Court depends upon the domicile, the place of solemnization of marriage and residence and if there is difficulty regarding this, the place where the cause of action arise.” Balasubramaniam Guhan v. T. Hemapriya, (2005) 3 LW 459. “Where the provisions as to jurisdiction specifically contain in a statute is impossible of satisfaction, the provisions of Section 20 of Civil Procedure Code, 1908 would be sufficient to create jurisdiction in the ordinary civil courts at a place where either the defendant resides or the cause of action can be said to arise.” Id. “To constitute domicile, two factors are essential i.e., (i) residence and (ii) intention to make a home.” Id. “Domicile shall be classified into three categories i.e., (i) domicile by birth or origin (ii) by choice and (iii) by operation of law.” Id. “The domicile of choice is acquired by combination of fact and intention.” Id. “A man acquires a new domicile by taking up residence in a Country, which is not that of his domicile or origin and it is so with the intention that his residence should be permanent.” Id.

In India, a hindu marriage is solemnized per the provisions of Hindu Marriage Act, 1955 (“Act”). Similarly, such a marriage is nullified or dissolved per the same legislation. Section 19 of the Act empowers either spouse residing in a foreign land to initiate a divorce proceeding in a foreign court. Section 19 says that:

Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together.

 

The Delhi High Court in Mrs. Anoop Beniwal v. Dr. Jagbir Singh Beniwal, AIR 1990 Del. 305, held that:

As regards S. 19 of the Act, that relates to jurisdiction, and it confers jurisdiction to courts with respect to marriages solemnized in India, to the place where the marriage was solemnized where the respondent at the time of representation of the petition, resides, or the parties to the marriage last resided together.

 

(emphasis added).

 

The Code of Civil Procedure (“Code”) governs the law on jurisdiction of a foreign court on a divorce proceeding initiated by an Indian couple. Section 2 (5) of the Code defines a “foreign Court”. Section 2 (5) of the Code defines a Foreign Court as:

a Court situate outside India and not established or continued by the authority of the Central Government.

 

The following circumstances would give jurisdiction to foreign courts:

 

  1. Where the person is a subject of the foreign country in which the judgment has been obtained;
  2. Where he was a resident in the foreign country when the action was commenced and the summons was served on him;
  3. Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he issued later;
  4. Where the party on summons voluntarily appeared; and
  5. Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained.[1]

 

(emphasis added).

 

The Supreme Court of India in Y. Narasimha Rao and Ors. v. Y. Venkata Lakshmi and Anr., (1991) 3 SCC 451, held that:

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.

 

Section 13 of the Act deals with the grounds on which a marriage may be dissolved. Section 13 of the Act says that:

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) is living in adultery; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or

(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or

(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

 

A Foreign Court shall have jurisdiction over a divorce proceeding initiated in that Court if the opposite party has voluntarily submitted to the jurisdiction of that Court or has attended the further judicial proceedings. In Mrs. Anoop Beniwal, AIR 1990 Del. 305, the Delhi High Court held that:

Factually the plaintiff herein and the respondent in the proceedings in England did have the opportunity to defend the suit held against her. She led evidence in those proceedings. She just happens to have failed to have a decision in her favor. An opportunity of hearing having been granted, it is not right to assert that the proceedings in England were opposed to natural justice. Nor is it proper to say that the judgment by a Court of England has not been given on the merits of the case. In my view, the assertions made in the “Particulars” annexed to the petition, it has been shown to me, and reproduced here above, could be made under S. 13(l)(ia) of the Hindu Marriage Act regarding treatment of the petitioner with cruelty. The claim in the proceedings in England cannot therefore, be said to be founded on the breach of law in force in India.

 

Additionally, “[i]t is settled law that the place of residence at the time of the filing of the application under the [Hindu Minority and Guardianship] Act does not help to ascertain whether a particular court has jurisdiction to entertain the proceedings or not.” Manish Sehgal v. Meenu Sehgal, (2013) III DMC 411 (Del.). “The moving of minors from one place to another and consequently from one jurisdiction to another does not help the party who raises the plea of jurisdiction.” Id.

Generally, in MCL 722.1206 determines which state may exercise jurisdiction over a child in a cross-border custody dispute. In Lingam v. Aruru, No. 315598, 2014 WL 1879437 (2014), the court held that the Michigan court had proper jurisdiction. Id. at 6.  The court reasoned that in the absence of evidence of a pending appeal in India, MCL 722.1206 properly conferred jurisdiction to Michigan when the Indian order was vacated. Id. and 6-7.

From the foregoing, it appears that a US Court may have a jurisdiction over a divorce proceeding initiated by an Indian citizen when the parties have last resided together in US prior to the filing of the divorce petition. A US Court may also assume jurisdiction over such a matter if either of the parties have submitted to the jurisdiction of the Court by voluntarily appearing before the Court and participating in the proceedings on the receipt of summons, even if either of them is in India. Moreover, the place of residence at the time of filing of an application for the custody of a child does not aid in ascertaining whether a particular court has the jurisdiction to entertain such a matter or not. The shifting of a minor child from one jurisdiction to another do not aid a person who raises the plea of jurisdiction. Therefore, it appears likely that because Shradha appeared in the case through her US counsel the UCCJEA confers jurisdiction to the US court through the first-filed US case, her presence in India notwithstanding.

  1. Can a US Court’s orders be binding over a defendant in a divorce proceeding instituted in US when the defendant is residing in India?

 

  1. Section 13 of the Code deals with the enforcement of foreign judgments. Section 13 of the Code says that:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

 

Section 14 of the Code deals with the presumption of foreign judgments. Section 14 of the Code says that:

The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment’ that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

 

The Supreme Court of India in Y. Narasimha Rao and Ors., (1991) 3 SCC 451, while dealing with the enforceability of a foreign judgment in a divorce matter, held that:

We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognized if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognizes as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

 

The Supreme Court of India, further held that:

 

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

 

(emphasis added).

 

In Ms. Dorothy Thomas v. Mr. Rex Arul, 2011 6 MLJ 475, the Madras High Court determined whether the final order of the Superior Court of Cobb County, State of Georgia, in Civil Action File No. 10-1-8238-48, would be binding of the party spiuse in India. Id. at para 1. The wife (“Plaintiff”), then in India, filed a petition for divorce, custody of the minor child, and child support through her US Counsel. Id. at para 4 (e). The Plaintiff later withdrew her petition but the US court proceeded with the defendant’s counterclaims for divorce and custody.  Id. at para 4 (h).

The Madras High Court held that the US court had jurisdiction, even though the Plaintiff never personally appeared.  Id. at para 126 (ii). The High Court reasoned that appearing through counsel was sufficient to extend personal jurisdiction over the plaintiff for the defendant’s counterclaims.  Id. The Defendant filed a petition for issuing a writ of Habeas Corpus before the High Court of Madras. Id. at para 4 (m). The High Court of Madras held that:

Within a week of receipt of a copy of this order, the plaintiff is directed to move the Superior Court of Cobb County which passed the final order dated 1.11.2010, praying for a variation/modification of the said order and also praying for recalling the order passed in the contempt petition. Since the procedure of the Superior Court of Cobb County appears to permit the filing of petitions through counsel, even when the parties are abroad, the petitioner shall move the said Court even from here. In the application so filed, the plaintiff shall tender unconditional apology to the said Court for violating its orders and shall also give an unequivocal undertaking to appear before that Court along with the child, provided the defendant purchases tickets for the plaintiff and the child and also takes care of the expenses for the stay of the plaintiff and the child in U.S., till the proceedings before that Court are concluded.

 

Therefore, even though a party appears only through US counsel, that appearance is sufficient to confer personal jurisdiction.

  1. A foreign judgment, which is conclusive under Section 13 of the Code, can be enforced in India in the following ways:
  2. By instituting a suit on such foreign judgment

A foreign judgment may be enforced by instituting a suit on such foreign judgment. The general principle of law is that any decision by a foreign court, tribunal or quasi-judicial authority is not enforceable in a country unless such decision is embodied in a decree of a court of that country. In such a suit, the court cannot go into the merits of the original claim and it shall be conclusive as to any mater thereby directly adjudicated upon between the same parties. Such a suit must be filed within a period of three years from the date of the judgment.

  1. Execution Proceedings

A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. Section 44A of the Code deals with the execution of decrees passed in a reciprocating territory. Section 44A says that:

(1) Where a certified copy of a decree of any of the superior Courts of {The words “the United Kingdom or” omitted by Act 71 of 1952, s.2.} any reciprocating territory has been filed in a District Court, the decree may be executed in [India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent if any to which the decree has satisfied or adjusted and such certificate shall for the purposes of proceedings under this section be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court execution a decree under this section and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within an y of the exceptions specified in clauses (a) to (f) of section 13.

{Subs. by Act 71 of 1952.s.2, for Explanations 1 to 3.} [Explanation 1.- “Reciprocation territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section ; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.- “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, bur shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]]

 

The decree can be executed under Section 44-A only if all the conditions of Section 13 (a) to (f) are satisfied.

From the foregoing, it appears that a foreign judgment is presumed valid if the judgment purports to be a certified copy of a foreign judgment and that the judgment was pronounced by a Court of competent jurisdiction. The presumption may be displaced by disproving jurisdiction. A foreign judgment shall be enforced per Section 13 of the Code, provided that it satisfies all the conditions of Section 13 (a)-(f) of the Code. A foreign judgment can be enforced in India by instituting a suit in the District Court per Section 44-A of the Code.

CONCLUSIONS

Therefore, a US Court may have jurisdiction over a divorce proceeding initiated by an Indian Citizen, even if the marriage was solemnized in India, if the parties last resided together in US. Further, a US Court may have jurisdiction over such a matter if either of the parties voluntarily submits to the jurisdiction of the US Court and participates in the proceeding on the receipt of the summons. Appearance via counsel is likely sufficient to confer personal jurisdiction.

A foreign judgment shall be enforced in India per Section 13 of the Code if it satisfies all the conditions provided in Section 13 (a)-(f) of the Code. Above all, it may be enforced by instituting a suit before the District Court per Section 44-A of the Code.

[1] Raghavendra Singh Raghuvanshi, Legality of Foreign Judgments, http://www.legalservicesindia.com/articles/fore.htm