ITC Limited v. Nestle India Limited: The Famous Magic Masala Case
March 12, 2021
March 12, 2021

Revisiting Jurisdictional Rules in Cases of Foreign Divorce to Curb Forum Shopping: A Case for Reform


The onset of globalization has resulted in a large-scale movement of people, culture and capital across borders. Adjudicating family disputes is no longer confined to interpreting domestic marriage statutes. It now involves a rigorous analysis of factors including inter alia domicile, religion and residence of the parties to a suit. Ostensibly, this is done in order to determine the law and the forum of adjudication that is applicable to the parties so that they may secure substantive justice and not merely choose fora or laws that give either of the disputing parties relief to the prejudice of the other. Private international law, or conflict of laws, is a branch of civil law of the State evolved to do justice between litigating parties in respect of transactions or personal status involving a foreign element.[1] The foreign element signifies a contact with some system of law other than the law of the forum.[2]

There is a strong need for countries to develop strong conflict of law rules which can ensure justice with least inconvenience caused to either party. This assumes significant importance in light of forum shopping[3] that spouses often resort to while litigating divorce wherein they take advantage of divorce laws in different countries either in terms of the grounds offered for divorce or other seemingly liberal requirements that concern the exercise of territorial jurisdiction. The Code of Civil Procedure (‘CPC’) 1908 gives recognition to foreign judgements subject to certain conditions. However, it has been observed that in the context of divorce, the Supreme Court (‘SC’) and many High Courts have interpreted Section (‘S’) 13 of the CPC extremely rigidly leaving parties to seek divorces from Indian courts only. Not only is this financially and logistically impracticable in many cases, it can result in situations wherein persons are forced to be consigned to limping marriages. Thus, I argue for liberalizing the recognition of foreign decrees of divorce premised on the closest concern test to determine the law that is applicable to the disputing parties by introducing an appropriate legislation for the same.

Jurisdiction and applicable law in the international context

In Y Narsimha Rao v Y Venkata Lakshmi, the Court examined the validity of foreign divorce decrees in India. The Court held that the court of competent jurisdiction was that which the statute/personal law, under which the parties married, recognized as the competent court. Thus, any foreign court is not a competent court as none of the domestic statutes give powers to decide matrimonial reliefs to foreign courts. The grounds on which relief is granted must be strictly based on the law under which the parties married. This ‘matrimonial law rule’ is subject to three exceptions[4] and the respondent must be duly served. The foreign decree must be a result of a contest between the parties and the ability of a spouse to actually contest the foreign proceedings must be considered before recognition is granted. Thus, an ex parte decree granted without observing these principles of natural justice and without the respondent submitting to the jurisdiction of the Court cannot be considered valid.

One of the motivations of the Court was ostensibly to reduce the instances of forum shopping by errant husbands who looked to fraudulently divorce and abandon their Indian wives by misrepresenting important jurisdictional facts. However, it has been observed that not only does this decision disturb the settled position of lex domicilii in governing divorce,[5] it has also resulted in unintended consequences for women. The matrimonial law rule effectively requires women who are married under Indian law but domiciles/habitual residents of other countries to compulsorily maintain petitions under Indian law in Indian courts to ensure a valid divorce decree in order to avoid worrying about additional litigation.[6] Additionally, this decision has not stopped the ever-increasing abandonment of Indian women by their husbands, divorcing the former using foreign law.

Prior to Narsimha Rao, the matrimonial law rule was not followed by Courts with many of them using the rules of domicile of the parties and even the real and substantial connection test to determine the law that would apply to the parties and the fora that could be competent to adjudicate the dispute. These observations made therein have never been overruled by the SC. Faced with the question of whether to grant recognition to a foreign custody order secured by a wife married under Hindu law in an English court as per English law, the Court in Surinder Kaur Sandhu v Harbax Singh Sandhu made note of the location where the parties had set up their matrimonial home and held that ‘jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage.

Applying the closest concern test, the Court would have to look at first the place that has the closest connection to the spouses and children and on that basis determine the law that was applicable, contrary to the current approach which looks at the law under which parties  married and then determining relief. This would account for the practical realities of the spouses, even if they were married under an Indian statute and were domiciled elsewhere. Even if a foreign court were to exercise territorial jurisdiction on the basis of domicile of the petitioner, recognition of a foreign divorce decree in India would still be restricted by the law that would be applied, if the closest concern test is adopted. It goes without saying that this test must be used in conjunction with other considerations of private international law such as judgement obtained by fraud and denial of natural justice, which have already been incorporated in S.13 of the CPC.

It is interesting to note that the judgement in Narsimha Rao did not engage with the observations made in Surinder Kaur. Adopting the position in Surinder Kaur, it would be possible for a Court to uphold the validity of a divorce decree passed on the ground of irretrievable breakdown of marriage even when the said ground is non existent in any Indian marriage statute provided the decree suffers from no other infirmities. This directly contradicts the position in Narsimha Rao which confined itself to the rigid language of S.13. Thus, there is a clear inconsistency in how the Courts ought to understand questions of jurisdiction and law related to matrimony. Yet, the closest concern test has been upheld in Surya Vadanan v State of Tamil Nadu and Courts have taken into account which forum is the ‘natural’ forum of the parties based on residence in order to contest the suit.

Granting validity to foreign divorce decrees on the basis of the closest concern test would reduce instances of forum shopping and ensure substantive justice to either party provided no fraud is played to invoke the jurisdiction of the Court and the rule of audi alteram partem with the actual ability of the spouse to contest the proceedings and voluntarily submit to the jurisdiction of the forum is observed. The territorial jurisdiction of the foreign court could still be exercised on the ground of domicile of the petitioner, yet it is not necessary that it would always work against the interests of women,[7] for the Indian Court would also examine the law that was applied.

However, the only concern with the closest concern test is that it still remains a rather vague test with a high amount of judicial discretion which may inevitably complicate matters if multiple foreign elements are involved. To reduce ambiguity, a solution that has been proposed is to use the law of the forum that was the last ‘common primary marital residence’, which could be determined by the parties’ tax returns, where they are registered to vote or even where their children are enrolled in school. Thus, it is necessary to introduce a new Legislation that would liberalize the recognition of foreign decrees and break away from the strict use of the test laid down in Narsimha Rao, as otherwise India would risk standing and isolated in the community of nations by its ostrich-like policy of non-recognition of most foreign divorce decrees.[8]


In this piece, I have looked at the problem of forum shopping in international divorce cases suggesting solutions for the same. However, there remains an urgent need to comprehensively clarify the rules of private international law related to matrimony that would be applicable to India. With respect to the recognition of foreign divorce decrees, I have argued that recognition of foreign decrees should be awarded on the basis of the closest concern test as laid down in Surinder Kaur Sandhu and Courts ought not to rely on the narrow test of Narsimha Rao. This would inevitably involve amendments to S.13 of the CPC, and yet, these steps are necessary to ensure that the Court can give effect to the principle of comity as much as possible.

[1] Lakshmi Jambholkar, ‘Conflict of Laws’ in Shashi Kant Verma and K. Kusum (eds), Fifty Years of the Supreme Court of India: Its Grasp and Reach (OUP 2000) 651

[2] VC Govindaraj, Conflict of Laws in India (2nd edn, OUP 2019) 1

[3] Boys v Chaplin [1969] 3 WLR 322 defined forum shopping as ‘a plaintiff by-passing his natural forum and bringing his action in some alien forum which would give him relief or benefits which would not be available to him in the natural forum.’

[4] (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

[5] Lakshmi Jambholkar, ‘Recognition of Foreign Divorce Decrees in India: A Case for Contextual Interpretation’ (1991) 33(3) Journal of the Indian Law Institute 432, 436

[6] Vasanti Nimushakavi, ‘Cross Border Divorce Decrees: Recognition in India and Public Policy Concerns’ in Sai Ramani Garimella and Stellina Jolly (eds), Private International Law: South Asian States Practice (Springer 2017) 130

[7] Vasanti Nimushakavi, ‘Cross Border Divorce Decrees: Recognition in India and Public Policy Concerns’ in Sai Ramani Garimella and Stellina Jolly (eds), Private International Law: South Asian States Practice (Springer 2017) 130

[8] TS Rama Rao, ‘Some Recent Developments and ‘Non Developments’ in Indian Private International Law’ (1985) 27(4) Journal of the Indian Law Institute 555, 559




Keshab Roy Choudhury is a third year law student studying at Jindal Global Law School, Sonipat.

In Content Picture: The Blue Diamond Gallery






Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.

Leave a Reply

Your email address will not be published. Required fields are marked *