I got divorced abroad. Is that decree valid in India?

This catches a great many people, often years later and at the worst possible moment, usually when they remarry or when a succession issue arises.

The governing rule

A foreign judgment is conclusive in India only if it clears Section 13 of the Code of Civil Procedure, 1908. It is not conclusive where:

• it was not pronounced by a court of competent jurisdiction
• it was not given on the merits of the case
• it is founded on an incorrect view of international law or a refusal to recognise Indian law where applicable
• the proceedings were opposed to natural justice
• it was obtained by fraud
• it sustains a claim founded on a breach of Indian law

Section 14 works alongside it and is worth knowing because it decides who has to prove what. On production of a certified copy of a foreign judgment, the court presumes that it was pronounced by a court of competent jurisdiction, unless the contrary appears on the record. So the person challenging the decree carries the burden of bringing it within one of the Section 13 exceptions. That is a presumption, not a shield: it is displaced routinely once the foreign pleadings show the ground relied on, or the record shows that the other spouse never appeared.

The leading case

In Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) the Supreme Court held that a foreign matrimonial decree is recognised only if the forum had jurisdiction as per the law under which the parties were married, and the decree was granted on a ground available under that law, after the respondent was given a proper opportunity to contest. A decree obtained on "irretrievable breakdown" alone, in a jurisdiction the parties merely happened to be residing in, and without the other spouse participating, will very often fail this test.

• The foreign court had jurisdiction on a basis Indian law recognises
• The decree was passed on a ground available under the law the parties were married under
• The respondent was properly served and had a real opportunity to contest
• The respondent submitted to that jurisdiction, or the decree was not obtained ex parte
• The decree is on the merits, not by default or by consent alone
• A certified and, where required, apostilled copy of the decree with the full record

What makes a foreign decree more likely to hold

• The other spouse voluntarily and effectively submitted to that jurisdiction, participated, and contested on the merits
• The ground relied on is one that also exists under the law the parties married under
• The decree records a consent or settlement both parties genuinely entered into

What to preserve, starting now

Whether the decree holds up is usually decided on documents that people throw away. Keep, and keep together:

• The certified copy of the decree under the seal of the foreign court, with an apostille where that country is a party to the Hague Apostille Convention, or attestation by the Indian mission where it is not
• The petition or complaint filed there, which shows the ground the decree was granted on. This is the document that most often decides the case
• Proof of service on the other spouse, and the record of their appearance, their answer, and any consent or settlement they signed
• The order sheet or docket showing the matter was heard and decided rather than disposed of by default
• A certified translation where the record is not in English

If you are unsure

The safe course before remarrying or dealing with property is a declaratory suit in India, or a fresh petition here. It is far cheaper than unwinding a void second marriage.

That declaration is not an exotic remedy. Section 7 of the Family Courts Act, 1984 expressly covers a proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person, so it goes to the same Family Court that hears divorce petitions, in Bengaluru at Nyaya Degula, H. Siddaiah Road. Two more points on timing. Section 15 of the Hindu Marriage Act allows a divorced person to marry again only once the time for appealing has expired or an appeal has been dismissed, and people who remarry the week the decree is signed create a second problem on top of the first. And where you conclude the foreign decree will not hold, the cleanest fix is often a fresh mutual consent petition here with the former spouse's cooperation, which is far quicker and cheaper than litigating recognition. The guide on whether a foreign divorce decree is valid in India works through the ex parte and consent decree scenarios separately, and the companion guide on NRI divorce in India covers filing here instead.