Question: My husband and I live in the United States of America (USA). We are incompatible and cannot live together. Therefore, we have decided to break our marital relations. We have thus filed a mutual consent divorce case and recently the American court has passed a divorce decree. How to execute foreign divorce decree in India? Whether we will have to file a fresh divorce case in India? I have decided to live in India therefore, I want execution of American’s court in India.
Question from: USA
You can execute the foreign divorce decree in India if the decree does not violate any law prevailing in India. The mutual consent divorce is also prevailing in India. Section 13-B of the Hindu Marriage Act 1955 provides divorce by Mutual Consent.
Next step is to check whether the conditions of Section 13 of the Code of Civil Procedure (CPC) have complied or not. Section 13 says that foreign judgment is conclusive in India in respect of the matter adjudicated thereto if these conditions are fulfilled.
- Decree should be passed by a competent foreign court.
- The decision was given on merit of the case.
- The Court has adopted the correct view of International law.
- Decree should recognise the law of India.
- Proceeding of court should be in conformity with the principle of natural justice.
- Decree should not be obtained by fraud.
- Sustain a claim which does not breach any law in force in India.
How to execute foreign decree in India
If the above conditions are fulfilled then you can easily execute foreign divorce decree in India. The Hindu Marriage Act recognises the mutual consent divorce then decree is prima facie does not violate Indian law. You both have given their consent and there is no dispute remaining to adjudicate.
The court has finally adjudicated your matter and the right to appeal has either exhausted or waived. Thus you can proceed to execute the decree of American court.
File an application under section 44A CPC
You should file an application under section 44A of the code of civil procedure (CPC) for execution of foreign decree in India. The application shall be filed before the district court within whose territorial jurisdiction you reside.
There is no limitation period for filing an execution application in India [Baroda v. Kotak Mahindra Bank Ltd. 2015]. You should take a certified copy of the decree from the court. The seal of the court should be clearly visible.