This Article is authored by Advocate Anil Malhotra.
With the ever increasing multifold population of Indians migrating and settling in foreign jurisdictions, the link with their home country does not sever. Family ties, connections of property and moveable assets, and invariable link with some Indian end for any reason whatsoever often leads to cross border litigation in human relationship matters. Situations are abound when a non resident Indian invokes the jurisdiction of the foreign Court where he is resident and convinces the overseas Court to pass favourable Orders in such matters which are thereafter sought to be executed in the Indian jurisdiction through the Courts of law in India more particularly in the State of Punjab affected seriously by it.
Indian Law reports contain a number of judgments 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 or other foreign decisions in related matters in the Hindu Marriage Act, 1955, Special Marriage Act, 1954, Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956, Hindu Minority and Guardianship Act, 1956 or in any other Indian legislation relating to family matters, the only recourse lies to Section 13 of the Indian Code of Civil Procedure(CPC) which is the general provision of law relating to conclusiveness of judgments by foreign Courts.
In view of the aforestated position, the provisions of Section 13 CPC are also fully applicable to matrimonial matters decided by foreign Courts. In such a situation, the precedents giving instances of such reported matters are therefore available only in the shape of judicial pronouncements of Indian Courts who have from time to time rendered a laudable service in interpreting foreign Court Orders in the best interests of human relationships rather than executing them simplicitor in letter and spirit. The Indian judiciary in such a pivotal role is extremely humane and considerate in family matters by implementing the foreign Court Orders in a practical way rather than a mechanical execution of the Order or judgment of the overseas Court. Perhaps this openness and fluidity is possible since the Indian Courts are not strictly bound by a foreign Court Order in family matters but when asked to implement or enforce the same, the Indian Courts apply principles of good conscience, natural justice, equity and fair play thereby rendering substantial justice to parties in litigation. This can be best seen in decisions of some Indian Courts which have resulted by the Court being asked to implement or execute a Court Order or judgment arising from a foreign jurisdiction.
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 laid down fresh comprehensive guidelines for the recognition of foreign matrimonial judgments by the Courts in India whereby Indian Courts would not recognize exparte foreign judgments obtained on grounds not available under Indian Law. Subsequently, 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. A number of instances in Punjab are also reported.
It may be noted that the proposed guidelines of Supreme Court are meaningful and if implemented can mitigate the plight of wives dumped in India by foreign husbands. Though, the apex court has clearly stated the need for suitable legislation on the subject, as yet no Indian law has been enacted to protect the rights of deserted and abandoned spouses in India. In essence, therefore, the judicial verdicts of courts of law are the only available law in India to come to the rescue of hapless Indian spouses who protest against the uncontested foreign divorce decrees invariably obtained in default by spouses from overseas jurisdictions. Thus, some codified law in India on the subject is undoubtedly now an absolute necessity and more particularly in the State of Punjab.
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 non-resident Indians now permanently living in overseas jurisdictions, it has now become important that some composite legislation is enacted to deal with the problems of non-resident Indians to avoid them from importing judgments from foreign Courts to India for implementation of their rights. The answer therefore lies in giving them law applicable to them as Indians rather than letting them invade the Indian system with judgments of foreign jurisdictions which do not find applicability in the Indian system. Hence, it is the Indian legislature which now seriously needs to review this issue and come out with a composite legislation for non-resident Indians in family law matters. Till this is done, foreign Court judgments in domestic matters will keep cropping up and Courts in India will continue with their salutary efforts in interpreting them in harmony with the Indian laws and doing substantial justice to parties in the most fair and equitable way. 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 deciding 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 and till such time when the Indian Legislature comes to rescue with appropriate legislation, we seek solace with our unimpeachable and unstinted faith in the Indian Judiciary which is rendering a yeoman service. A law in unison is needed to rein in the wrangles.