Dubai: If you are an Indian national living in the UAE, does a divorce settlement finalised in the UAE become applicable within India as well? A Gulf News reader wrote in raising this query.
He asked: “My wife and I are both Indian nationals, Hindus and Dubai residents. We have recently completed our mutual divorce as per the Personal Status law in Dubai and also have a separation agreement. However, our marriage was solemnised under the Maharashtra Marriage Act, India.
“We have a daughter who is eight years old and staying with us. As per our agreement, the wife/mother has given up the right to alimony, custody and guardianship of the child. My child and I will be moving out of the house and shifting in with my mother and sister. I will be responsible for all the financial and educational expenses of the child.
“Is the court judgement and Mutual Separation Agreement – which has been attested by the UAE’s Ministry of Justice, UAE’s Ministry of Foreign Affairs and International Cooperation (MOFAIC) as well as the Indian Consulate – enough to do a mirror agreement divorce in India? My main concern is that the child’s custody and guardianship should not be hampered. I would appreciate the feedback and guidance from Gulf News.”
Conditions that need to be met
According to Hari Wadhwana, Associate at Dubai-based law firm OGH, for a UAE divorce order to be enforced in India, a few aspects need to be confirmed by the parties involved.
“Firstly, we need to ensure that the divorce decree obtained in the UAE is final and not subject to any appeal. Secondly, it should also be confirmed that both parties to the proceedings were well-represented and accepted that the UAE Court hear the matter. Thirdly, it should be ensured that the decision does not deal with any issue that may be debated in Indian Law,” Wadhwana said.
Firstly, we need to ensure that the divorce decree obtained in the UAE is final and not subject to any appeal. Secondly, it should also be confirmed that both parties to the proceedings were well-represented and accepted that the UAE Court hear the matter. Thirdly, it should be ensured that the decision does not deal with any issue that may be debated in Indian Law.
He added that Article 13 of UAE’s Federal Law No. 5 of 1985 states that the law applicable in the country where the matrimony was concluded shall be applicable on matters of divorce and separation.
Will the divorce finalised in the UAE be valid in India?
As for the laws and regulations that are applicable in India, as per Rishi Ashok, Counsel at Bombay High Court, through various judgements Indian courts have concluded that a decision of a foreign court with respect to matrimonial proceedings, is conclusive and enforceable in India only when “it is passed by a court of competent jurisdiction and is in accordance with the law that governs the matrimonial matters between the parties”.
Both the parties have mutually agreed to submit themselves to the UAE Court jurisdiction and have procured a court order, which is accepted by both parties. This would deem to satisfy the exceptions set out by the Honourable Supreme Court of India.
Ashok added that as per matrimonial laws in India while the competent court to decide on such cases are Family Courts in India, there are some exceptions to this rule, as per a Supreme Court judgement.
“We understand from the reader’s query that both the parties have mutually agreed to submit themselves to the UAE Court jurisdiction and have procured a court order, which is accepted by both parties. This would deem to satisfy the exceptions set out by the Honourable Supreme Court of India,” Ashok said.
UAE courts
Additionally, Wadhwana added the Government of India had issued a notification on January 17, 2020, titled ‘Enforcement in India of Decree passed by Courts in United Arab Emirates’. As per the notification, Federal and local courts of the UAE would be considered as ‘Superior Courts’, as defined under Section 44A of India’s Civil Procedure Code (CPC).
“This ensures and confirms that the foreign decree of the UAE can be executed in India, satisfying pre-conditions set out in Section 13 of CPC,” Wadhwana added.
However, while the UAE Court order procured by the parties in UAE is valid and enforceable in India, Ashok advised individuals to have the court orders reviewed by a legal expert to ensure that they comply with the legal requirements set within the law.
“We would suggest that the parties engage a legal counsel in their district of residence in India to have the UAE Court order reviewed and file appropriate enforcement application for recognition of UAE Court order in India,” he said.
