NRI and cross-border matters

A marriage with one spouse abroad produces a set of problems Indian family law was not designed for: two courts that both claim jurisdiction, a decree that may or may not be recognised here, and a child in a country whose courts apply different rules.

• s. 13 CPC — foreign judgments
• s. 14 CPC
• s. 25 CPC — transfer
• Order V r. 25 CPC — service abroad
• Y. Narasimha Rao v. Y. Venkata Lakshmi (1991)

Is a foreign divorce valid in India?

Not automatically. Section 13 of the Code of Civil Procedure makes a foreign judgment conclusive except in six situations — where it was not pronounced by a court of competent jurisdiction, where it was not given on the merits, where it is founded on an incorrect view of international law or a refusal to recognise Indian law where applicable, where the proceedings were opposed to natural justice, where it was obtained by fraud, or where it sustains a claim founded on a breach of Indian law.

In Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) the Supreme Court applied this to matrimonial decrees and held, in substance, that a foreign decree will be recognised only where the jurisdiction assumed by the foreign court and the ground on which the relief was granted are in accordance with the matrimonial law under which the parties married. The practical effect is significant: a decree granted abroad on a ground not available under the Hindu Marriage Act — irretrievable breakdown, for example, or no-fault dissolution after a short separation — is vulnerable to challenge in India even if it was perfectly regular where it was made.

Two routes exist where a foreign decree is not safely relied upon: a declaratory suit in India seeking a declaration as to its effect, or fresh proceedings in India — frequently a joint petition under section 13B, which both parties may prefer once the position is explained.

Which court has jurisdiction

Under the Hindu Marriage Act a petition may be presented where the marriage was solemnised, where the respondent resides, where the parties last resided together, or, in certain circumstances, where the petitioner resides. A marriage solemnised in Gurgaon therefore commonly founds jurisdiction here even where both parties have since moved abroad. Where proceedings are already pending in a foreign court, the Indian court is not obliged to defer to them, and anti-suit injunctions have been granted in appropriate cases — though they are discretionary and the delay in seeking one counts against the applicant.

Serving a spouse abroad

Service outside India is dealt with under Order V of the Code of Civil Procedure and, where the destination country is a party, through the Hague Service Convention channel via the Ministry of Law and Justice. It is slow. Where an address abroad is known and the respondent is evading, substituted service by publication or by electronic means may be sought, and courts have permitted service by email and messaging applications where the account is shown to be in active use. Getting service right at the outset saves more time than any other single step in a cross-border matter, because a decree passed without valid service is open to attack years later.

Appearing from abroad

Personal appearance is required at certain stages, in particular both motions of a joint petition under section 13B. Applications for exemption from personal appearance and for permission to appear by video conferencing are routinely moved and are frequently allowed, but the position varies between courts and cannot be assumed. A power of attorney executed abroad has to be notarised and, depending on the country, apostilled or consularised, and stamped in India within the prescribed period after receipt.

Transfer petitions

Where a spouse has filed in one State and the other lives in another, section 25 of the Code of Civil Procedure allows the Supreme Court to transfer a case from a court in one State to a court in another. The grounds that succeed most often concern the practical inability of a party — usually a wife with a young child, without independent income, required to travel a long distance repeatedly. The Supreme Court has also encouraged the use of video conferencing as an alternative to transfer in appropriate cases.

Cross-border custody

India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. A parent whose child has been removed to India therefore cannot invoke the Convention's return mechanism, and a parent whose child has been removed from India cannot rely on it either. What Indian courts have done instead is decide these cases on the welfare principle, sometimes ordering return to the foreign court on the basis of comity and sometimes conducting an elaborate inquiry into welfare themselves, depending on how long the child has been in India and how settled the child is. Habeas corpus before the High Court is a common vehicle.

Where travel with a child is contemplated, an order permitting it — or a consent recorded before the court, with undertakings as to return — avoids a great deal of subsequent difficulty. Passport applications for a minor where one parent does not consent are dealt with on the custody page.

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