Dubai - "At the time of commencement of the divorce case filed before Dubai courts by me, my wife was residing with me in the UAE. However, she chooses not to attend the proceedings before Dubai courts."
Published: Fri 13 May 2016, 6:28 PM
I am an Indian, Hindu by religion, married for 15 years and have two minor children from my marriage. I had filed for divorce and custody of my children at Dubai Courts. At the time of commencement of the divorce and custody case filed before Dubai courts by me, my wife was residing with me in the UAE. However, she chooses not to attend the proceedings before Dubai courts. In 2013, Dubai Courts pronounced an ex parte judgement in my favour granting divorce and custody of children to me. Prior to the issuance of the judgment, my wife left to India and filed a new divorce case and another case for custody of children before Indian courts. Please let me know if the ex parte judgement pronounced by a UAE (foreign) Court is valid in India.
It is understood that your wife was residing in the UAE at the time you filed for divorce and custody of your children before Dubai courts but she was never notified by the Dubai courts about the case and accordingly she never appeared before the Dubai Court and subsequently moved back to India.
UAE Personal Law
The Personal Status Law permits the parties to choose the application of their personal law of their home country in their petition. This is in accordance with Article 1 (2) of the aforementioned law states: The provisions of this law shall apply to citizens of the United Arab Emirates State unless non-Muslims as they have special provisions applicable to their community or confession. The provisions shall equally apply to non-citizens unless one of them asks for the application of their home country's law.
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If is further understood your wife has filed two separate cases in India, one being for divorce and another seeking custody of the children.
Pursuant to your question, a foreign national can file for divorce and custody of children in the UAE as per Federal Law No. 28 of 2005 regarding Personal Status ('Personal Status Law').
The Personal Status Law permits the parties to choose the application of their personal law of their home country in their petition. This is in accordance with Article 1 (2) of the aforementioned law states: "The provisions of this law shall apply to citizens of the United Arab Emirates unless non-Muslims as they have special provisions applicable to their community or confession. The provisions shall equally apply to non-citizens unless one of them asks for the application of their home country's law."
Therefore in accordance with the aforementioned provision of Personal Status Law, you were within your rights to seek application of your Personal Status Law by Dubai Courts.
Since you are an Indian and Hindu by religion we assume that the provisions of Hindu Marriage Act of 1955 of India were applied by the Dubai Courts for granting the decree of divorce and custody of children. But since the order issued by Dubai courts is an ex parte judgement (in absentia of your wife), your wife may object to the judgment issued by Dubai courts as it was pronounced in absentia of one of the parties to the case on the basis that the party in absentia did not get a fair chance to defend and put forward her defence against you in the case filed by you.
In furtherance, Section 13 of the Civil Procedure Code of India 1980 (the 'CPC of India') states the grounds under which the foreign court judgements are not valid. It reads as below,
"A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigate under the same title except:
(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgement was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in India."
Cases that set a precedent
The below-mentioned judgments acts as a precedent to judgments issued by Indian courts:
A judgement was pronounced by the Chennai (Madras) High Court in the case of a Balasubramaniam Guhan versus a Mrs T Hemapriya wherein the court applied section 13 of the CPC of India to a non-resident Indian marriage. Here the wife had filed a suit for declaration to declare the decree of divorce passed by the Court at Scotland for divorce as ultra vires, unsustainable, illegal, unenforceable and without jurisdiction; and for a consequential injunction restraining the petitioner herein from enforcing the said decree or claim any rights under the said decree either by seeking to take a second wife or otherwise.
The High Court of Chennai (Madras) held in such facts that if the foreign judgement falls under any of the clauses of Section 13 of the CPC of India, it will be conclusive as to any matter thereby adjudicated upon and will be open to collateral attack on the grounds mentioned in section 13.
As in the suit filed by the wife, the foreign judgement granted in favor of the husband was challenged on the ground that it was an ex-parte decree, the Court which passed the decree was held to have no jurisdiction as the decree was passed when the wife was in India
The Supreme Court of India laid the golden rule regarding the interpretation of Section 13 of Civil Procedure Code of India in the case of a Narasimha Rao versus Venkata Lakshmia. It held, the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.
Based on the above-mentioned provisions of laws of India and the United Arab Emirates and the aforesaid supporting case laws and orders passed by the Courts of India your wife's application to set aside the judgment pronounced by Dubai court may be accepted by the courts in India as she was not notified about the case filed by you before Dubai courts.
Also, she never submitted herself to the jurisdiction of Dubai Courts for divorce case filed by you.
Code of India
Section 13 of the Civil Procedure Code of India 1980 states the grounds under which the foreign court judgements are not valid.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom, Singapore and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.
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