Often one of the spouse procures a foreign divorce decree and then question of execution of such decree arises .There are some guidelines by MEA regarding the same. In the case of Neeraja Saraph versus Shri Jayant Saraph in 1994, the Supreme Court suggested certain legislative safeguards, which include:
i. No marriage between an NRI and an Indian woman which has taken place in India, may be annulled by a foreign court.
ii. Provision to be made for adequate alimony to the wife in the property of the husband both in India and abroad.
iii. The decree granted by foreign courts may be executable only if the country has reciprocal agreement with India. section 44A of the civil procedure code which makes a foreign decree executable as it would have been a decree passed by the court in India.
In a recent judgement the Supreme Court awarded maintenance to wife out of ancestral property of husband. The husband had obtained experts divorce from Australia. The wife challenged the decree and obtained maintenance order . The husband neither appeared in court nor paid maintenance, which over the years came to RS 1.25 crores. The Supreme Court ordered to pay the maintenance out of property which belonged to the husband’s father , there by including ancestral property.
Ex parte divorce decrees obtained abroad can be challenged in India and not all decrees are executable.
