This article is based the Paper presented at the Annual Conference of the European Chapter of the International Academy of Matrimonial Lawyers held in Munich (Germany) from 6 to 8 May 2010.

With the increasing number of contentious and litigated matters involving the Indian jurisdiction arising regularly, a common question which very often arises relates to enforcement and execution of foreign judgments and overseas arbitration awards when they are sought to be implemented in India. It is at such a stage that the successful litigant now ventures on Indian soil before the competent forum for seeking the due relief awarded to him. It is in that context that this Article seeks to set down the current position in law whereby the possible solutions available under the law can be availed of in the Indian jurisdiction. The scope of this piece is limited to disputes of a civil nature only, the key focus being on enforcement of foreign matrimonial judgments in the Indian jurisdiction. Linked to this topic, this Article also looks at day to day topical family law issues, involving a strong international element.

In the present day and age, there is an increasing trend for seeking enforcement of orders and judgments of foreign courts in family and matrimonial matters. In this area of law, there are several reported pronouncements of Indian courts in which adjudicated disputes have helped to lay down a clear position of law. These are primarily relating to validity of foreign divorce decrees, maintenance, cross border child removal/abduction/custody cases, probate and trust litigation, and composite international wills, especially where assets are located in India and multiple jurisdictions.

Primarily, we are looking at the limited personal legal baggage of the non-resident Indian community, popularly referred to as the NRIs. Matrimonial laws are not common everywhere in the world and they differ from country to country. Men and women migrate to different countries to settle or work and likewise foreign nationals come to India. It is quite normal to notice that Indian nationals have been marrying foreign nationals either in India or abroad, and even both the spouses are foreign nationals, but of Indian origin and they get married in India. Quite often, a foreign national of Indian origin, resident and domiciled overseas, marries a spouse from India. Breakdown of a marriage in such a situation leads to complicated cross border legal problems, in the Indian jurisdiction as we do not have a consolidated codified private international law legislation specifically addressing such situations. All these problems arise due to cross border migration and the parties generally have their domicile in one country and either of the parties attempt to obtain matrimonial reliefs in a jurisdiction of their choice and convenience, financial implications being a major predominant criteria in divorce litigation, all of which leads to a conflict of law situation. The result is that quite often, the parties to the litigation end up with simultaneous court orders from different jurisdictions.

The Supreme Court of India in the matter of Y. Narasimha Rao & Others Vs. Y Venkata Lakshmi & Another, reported as JT 1991 (3) SC 33, observed that:

“The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated owing to the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it…..”

The basic provisions regarding enforcement of judgments and orders of foreign courts in India is contained in Code of Civil Procedure, 1908 (CPC) which is an enactment to consolidate and amend the laws relating to the procedure of the courts of civil judicature in India. The substantive provisions of law are contained in the parts of the Code which are dealt with in the Sections whereas the procedural provisions are laid down in the corresponding Orders and Rules contained in the Code. It is in this context that Section 44 A of the CPC lays down the provisions for execution of decrees passed by courts in reciprocating territories. A reading of this provision indicates that for a decree of a foreign court as a reciprocating territory to be executed in India, the foreign country must be so notified by the Government of India in the Official Gazette. Most of the countries including UK have been so notified by the Indian Government.

Sections 38 and 39 are dealt with in Part II of the Code relating to execution. Section 13 of the Code with regard to validity of foreign judgments is very important, and states that “a foreign judgment is not conclusive in the following situations; (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.”

The most commonly adopted ground used as a defence under Section 13 of the CPC is that the judgment and decree of the foreign Court is not based on the merits of the case and hence cannot be executed in India.

There are a plethora of judgments in India on matters relating to marriage, divorce, maintenance, succession, settlement of matrimonial property, child custody, parental abduction of children from foreign jurisdictions in matrimonial disputes and cases relating to adoption.

These foreign court orders, once having been passed, are sought to be enforced or executed in India through the medium of the Courts. Since there exists no separate provision for recognition of foreign matrimonial judgments, as already stated above, the only recourse lies in Section 13 of the CPC which is the general provision of law relating to conclusiveness of judgments by foreign Courts.

A very commonly arising issue pertains to recognition and indirect implementation of divorce decrees of foreign Courts produced in India by spouses residing in foreign jurisdictions. In this regard, different views had been expressed by different Indian Courts at different points of time. Consequently, the Supreme Court of India in 1991 laid down fresh comprehensive guidelines for the recognition of foreign matrimonial judgments by the Courts in India. It may be pertinent to point out that under Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all Courts within the territory of India.

The Apex Court in Y. Narasimha Rao Vs. Y. Venkata Lakshmi, made it clear that the Indian Courts would not recognise a foreign judgment if it had been obtained by fraud, which need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts. By this ruling, the Supreme Court on the facts of the case declared a divorce decree passed by a US Court unenforceable in India. Interpreting Section 13 of the CPC, the Court laid down broad principles to be followed by Indian Courts with special emphasis on matrimonial judgments. Likewise, in Smt. Neeraja Saraph Vs. Jayant V. Saraph reported as JT 1994 (6) SC 488, on the facts of the case, the apex Court came down heavily on the erring non-resident husband residing in a foreign jurisdiction who had abandoned his Indian wife without providing for any maintenance to her.

Another very commonly litigated issue in vogue, is in the area of international child abduction where an overseas litigating spouse violates a foreign Court Order and brings his or her child to India. The other spouse in turn lands up on Indian shores and approaches an Indian Court to enforce the foreign Court custody Order for seeking the return of his or her children to the foreign jurisdiction.

It may be pertinent to point out that prior to the above rulings of the Supreme Court, Courts in India were exercising summary jurisdiction regarding the return of children to foreign jurisdictions when they were brought to India in violation of foreign Court Orders without going into the merits of the matter. India is not a party to the 1980 Hague Convention on Child Abduction.

However, the 1997, 1999 and 2003 rulings clearly indicate that irrespective of any direction or order of a foreign Court, the present law requires the Court to act in the best interest and welfare of the minor child in child custody matters. Mere mechanical implementation of an order the foreign Court is now not done by the Indian Courts.

Much more recently, from the last half of 2009, and in the year 2010 so far, a reverse trend approach has been followed by the Supreme Court of India in child removal matters, ordering return of the removed/abducted child to the country of habitual residence. As of now, there have been conflicting judgments by the Supreme Court of India, with regard to the position of law in this realm of law.

A reading in totality of the matters in the overseas family law jurisdiction gives an indication that in such affairs, it is the judicial precedents which provide the much available guidance and judicial legislation on the subject. With the large number of NRIs now permanently settled in overseas jurisdictions, it has now become important that some composite legislation is enacted to deal with the problems of NRIs to avoid them from importing judgments from foreign Courts to India for implementation of their rights.

However, in this process, the Indian judiciary has made one thing very clear i.e. the Indian Courts would not simply mechanically enforce judgments and decrees of foreign Courts in family matters. The Indian Courts have now started looking into the merits of the matters and decide them on the considerations of Indian law and the best interest of the parties rather than simply implementing the orders without examining them. Fortunately, we can hail the Indian judiciary for these laudable efforts till such time the Indian Legislature comes to rescue with appropriate legislation.