The other day I came across an old article about how an Indian Court had enforced a foreign divorce decree. It was an article that made me fail to understand and appreciate at the same time why human beings complicate for the sake of complication (or should we say the lack of innovation?).

The problem we’re facing with regards to divorce decrees is a worldwide phenomenon. Because as humans we are open and susceptible to change, it is not surprising that marriages tend to fall apart. The reasons range from adultery to the lack of mutual understanding. And it so happens that when this marriage falls apart, the husband and wife are no longer in the country where they got married. With an economic cost benefit analysis as well as a social face saving benefit analysis, they together or one of the parties obtains a divorce decree in a Court in a Country far away from the one where they were married. With this begins the complication. If the whole objective of the couple was to be separated, there is a greater probability of their paths meeting; the reason being recognition of the divorce decree.

Recognition under domestic law is basically the "full faith and credit" rule. If a sister state recognizes a marriage, the other state is duty bound to recognize it too. However, international law isn’t based on a Constitution unlike our domestic civilities. The latter is a product of negotiation and politics. Until the stakes get high, we shouldn’t expect negotiations or understandings in this field of the law.

Non-resident Indians have been troubled for a fairly long time regarding the handling of marital disputes abroad. So much as to have the Law Commission of India come out with a report in 1976 as well as in 2009 on the recognition of foreign divorce decrees and the need for a comprehensive legislation for non-resident Indians. The Commission suggests that NRIs bring in foreign decree for mainly two reasons: (i) they are quicker or (ii) due to a lack of remedy in Indian Courts.

Private International law is fairly complicated in this area. While Article 10 of the Hague Convention of 1968 on the Recognition of Divorce and Legal Separations expressly provides that the contracting States may refuse to recognize a divorce or legal separation if such recognition is manifestly incompatible with one’s public policy, the Indian Judiciary has rarely tried not to enforce a foreign divorce decree. The reason according to the Law Commission does not lie with the Judiciary but the lack of legislative will. After all, the Judiciary is ensure the laws enacted by the Parliament are enforced.

So now we come to two questions: If foreign divorce decrees tend to create so much controversy then (i) why do Courts accept such foreign decrees at all? (ii) why grant a divorce decree to a foreign couple? 

Let me explain why I am asking these two questions. Regarding the first question, there is no necessity for Courts to accept foreign divorce decrees. True that the Code of Civil Procedure allows the Court to enforce such a decree but it is not mandatory. The relevant provisions of Section 13 of the Code are capable of being interpreted to not enforce such foreign divorce decrees.

Firstly, Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a Court of competent jurisdiction. This can be interpreted as only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Secondly, 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 recognise such judgment. This clause should be interpreted to mean that   the decision of the foreign court should be on a ground available under   the law under which the parties are married.

What I am trying to put forward here is that there is a lot of space for the Judiciary to reject such foreign decrees that grant divorce. If the Supreme Court decided not to enforce foreign divorce decrees, the complexities that arise from enforcing them would disappear. The reason being that once the Supreme Court refuses to enforce such decrees, divorcing couples will begin to seek divorce in India rather than in foreign Courts.

The second question relates to the very act of granting such decrees. Foreign Courts not only lack correct information regarding the couple but also expertise in understanding the complex setup of the Indian family. It would only be logical for them not to interfere in a matter. Now one would argue that suppose an Indian woman is stranded abroad with an abusive husband, what will she do? I must emphasize here that I am arguing against the granting of a divorce decree. Victims would still be able to take the advantage of other laws to protect themselves.

The question that I am scared to ask is: Are Courts using power only because they can? According to me, power must be used as a consequence of need rather than ability. Of course, ability is a precondition to need. I am not the first one to be asking these questions or providing such ideas. The Supreme Court in the landmark case of Smt. Neeraja Saraph v. Shri Jayant V. Saraph, JT 1994 (6) SC 488, the Court suggested a law on the grounds of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 enacted by the British Parliament under which it suggested that no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court. 

It's time the Judiciary used such an interpretation and stopped the complexities that arise due to the enforcement of such decrees.