Saturday, April 27, 2013

Ex parte divorce decree by foreign court invalid- Delhi High Court.




Ex parte divorce decree by foreign court invalid: Delhi High Court.
"The court has also held that a divorce granted by a foreign court on the ground of "irretrievable" breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid."

NEW DELHI: In what can have serious implications for divorces involving NRIs, Delhi high court has held that a divorce obtained by an NRI from a foreign court without the spouse's submission to the jurisdiction of that court is invalid.
The court has also held that a divorce granted by a foreign court on the ground of "irretrievable" breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid. The court's ruling came while rejecting the claim of an Indian-origin UK resident that the Ilford County Court, UK, had in 2011 already granted a divorce.

The man had challenged the trial court's order which had declared that divorce invalid. He sought dropping of the divorce proceedings against him on his wife's plea for dissolution of marriage under the Hindu Marriage Act. The woman, through her counsel, Prashant Mendiratta, claimed that the foreign divorce decree was an ex parte decree which she had been unable to contest. "The said decree is not recognised in India, and as such, the petitioner is not entitled to any relief," the counsel said.
The court cited a Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognised by Indian law.
"Both parties are Indians and the marriage between them was solemnized at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in the UK on the ground of having broken down irretrievably which is not a ground for divorce under HMA ..." Justice Veena Birbal said.
The court also rejected the man's argument that the UK court had made the decree "absolute" on the ground of "irretrievable breakdown" of marriage and his wife was also informed about the proceedings there.
Accepting the wife's argument that the divorce granted by the court in the UK was an ex parte divorce decree, Justice Birbal said, "Respondent (wife) never submitted herself to the jurisdiction of the said (UK) court. On June 15, 2011, she had lodged a representation before the Ilford County Court informing that she was in India and had filed a divorce petition here.
"She also informed (the court) that she was in acute financial difficulty (and won't be able) to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree 'absolute" ... In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court," the court said.

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