A very large share of the family matters we handle involve at least one party living outside India. The pattern is familiar: a marriage solemnised in India, a couple resident abroad, a breakdown, and then proceedings started in two countries at once by parties who each assume their own courts are the ones that matter.
They are not necessarily wrong — but the interaction between the two systems is governed by rules that are easy to state and easy to fall foul of.
The two-country problem
Three separate questions get run together, and they need to be kept apart:
- Does an Indian court have jurisdiction to entertain a petition?
- Will a foreign decree be recognised in India?
- What happens if proceedings run in both places simultaneously?
Will an Indian court hear the petition
Under Section 19 of the Hindu Marriage Act, 1955 a petition may be presented to the district court within whose jurisdiction:
- the marriage was solemnised; or
- the respondent resides at the time of presentation; or
- the parties last resided together; or
- the petitioner resides, where the respondent is residing outside India or has not been heard of as alive for seven years.
The fourth limb matters most for NRIs. A wife in India whose husband is abroad can ordinarily file where she resides. The Special Marriage Act, 1954 contains a comparable scheme in Section 31.
Note that Indian jurisdiction and foreign jurisdiction are not mutually exclusive. Both courts may properly be seised. Which decree ultimately governs is the next question.
Is a foreign decree valid in India
This is decided by Section 13 of the Code of Civil Procedure, 1908, as interpreted in Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) 3 SCC 451 — still the governing authority.
A foreign judgment is conclusive except where, among other things, it was not pronounced by a court of competent jurisdiction, was not given on the merits, was obtained by fraud, or is founded on a refusal to recognise Indian law where Indian law was applicable.
Narasimha Rao distilled this into a working rule. A foreign matrimonial decree will generally be recognised in India only if:
- it is passed by a forum where the respondent is domiciled or voluntarily and effectively submitted to the jurisdiction; and
- it is granted on a ground available under the law under which the parties married — for a Hindu marriage, a ground under the Hindu Marriage Act.
The practical consequence
A no-fault or “irretrievable breakdown” decree obtained abroad, in a jurisdiction where the respondent never appeared, is very often not recognised in India. The parties remain married in the eyes of Indian law. Remarriage on the strength of such a decree carries real exposure, including under the bigamy provisions.
Simply entering appearance abroad to contest jurisdiction is not, by itself, submission. But filing a defence on merits, or participating substantively, generally is — and it is frequently done inadvertently on foreign counsel’s advice, without anyone considering the Indian consequence.
Ex-parte proceedings in India while you are abroad
The most damaging scenario for an NRI is a matter proceeding in India without their knowledge, ending in an ex-parte decree or an ex-parte maintenance order. Service on an old Indian address, on parents, or by publication is enough to allow the case to move.
The remedies exist but are time-sensitive:
- Order IX Rule 13 CPC — application to set aside an ex-parte decree, on showing that summons was not duly served or that there was sufficient cause for non-appearance. Limitation is thirty days from the decree, or from knowledge of it where summons was not duly served.
- Section 5 of the Limitation Act — condonation of delay, which requires a candid and documented explanation of when you learned of the proceedings.
- Appeal or revision, depending on the order.
The single most important thing is the date of knowledge, and the ability to prove it. Keep the email, the message, the courier receipt.
Look-out circulars and passport impoundment
Two distinct measures are often confused.
A Look-Out Circular (LOC) is an immigration control measure requested by an investigating agency or directed by a court, which flags a person at ports of exit. It does not cancel a passport; it prevents departure. LOCs in matrimonial matters are typically sought in connection with criminal proceedings rather than the divorce itself.
Passport impoundment is governed by Section 10(3) of the Passports Act, 1967, which permits impounding or revocation on specified grounds — including where proceedings in respect of an offence alleged to have been committed by the holder are pending before a criminal court in India. Section 6(2)(f) allows refusal of a passport on similar grounds.
Both are challengeable. The consistent thread in the case law is procedural fairness: the person affected is entitled to know of the measure and to be heard, and a court asked to continue it must apply its mind to whether the restraint is still necessary. Courts have repeatedly quashed LOCs that were issued mechanically, or kept alive long after the reason for them had gone.
Where a person needs to travel for employment, an application for permission to travel — supported by an undertaking to return, a bank guarantee or surety, and proof of employment — is frequently allowed even where the underlying restraint is maintained.
Running a case without flying back
Most of an Indian matrimonial case can be conducted without the client present. In practice:
- a power of attorney, executed before the Indian mission or notarised and apostilled in the country of residence, permits a relative or counsel to act on specific matters;
- exemption from personal appearance can be sought for routine dates, with the court usually requiring appearance for settlement conferences, mediation and evidence;
- video-conferencing is now widely available, and several High Courts have framed rules for it;
- evidence can often be recorded on commission.
What cannot usually be avoided: personal appearance in mediation, and personal appearance for recording of a settlement or for a decree by mutual consent. Plan travel around those two.
What to do first
- Establish whether anything is already filed in India. Case status is publicly searchable; a proper search of the relevant district courts and High Court takes a day and prevents most disasters.
- Do not participate in foreign proceedings on merits without first taking Indian advice on what that does to your position here.
- Preserve the record. Communications, travel records, remittances and evidence of the last matrimonial home decide jurisdiction and maintenance quantum alike.
- Check for restraints before you book a ticket, not at the airport.
This is general information, not advice on your case
The law summarised above is stated as at the date of publication and applies differently to different facts. Nothing here creates an advocate–client relationship. If the subject affects you, speak to a lawyer about your own position — request a consultation or call +91 83685 88897.